
'lass JJL^X^ 



liOOK 



59th Congress, ) HOUSE OF REPRESENTATIVES. ( Report 

Jsi Sessw?). \ j No. 2118. 



' A- <^L 



PURE FOOD. 




March 7, 1906. — Couuuitted to the Coniiidttee of the Whole House on the state of 
the Union and ordered to be printed. 



U .- 
Mr. Manx, from the Committee on Interstate and Foreign Commerce, 
submitted the following- 

REPORT. 

[To accompany S. 88.] 

The Committee on Interstate and Foreign Commerce, to whom was 
referred the bills, H. R. 4527, 7018. 12071, 18859, and S. 88. beg- leave 
to report and recommend that the said House bills be laid on the table. 

H. R. -1:527 is the bill known as the "* Hepburn pure-food bill,'' and 
is similar to the bill which was reported to the House on fJanuary 18, 
1904, and which was passed b}' the House. 

Your committee has perfected the Hepburn bill by various amend- 
ments and recommends that Senate bill 88 be amended by striking- out 
all after the enacting- clause and substituting the Hepburn bill as per- 
fected by the committee. The perfected Hepburn bill, ottered as a 
substitute for the Senate bill, is set forth in full at the end of this 
report. 

The bill as reconmiended for passage proposes to regulate to a 
certain extent the traffic in drugs and foods in the District of Colum- 
bia, in the Territories, and insular possessions, also when imported into 
the United States or intended for export, and in interstate commerce, 
under rules and regulations to be made in accordance with the provi- 
sions of the bill by the Secretary of the Treasury, the Secretary of 
Agriculture, and the Secretary of Commerce and Labor. 

It forbids the importation, or the shipment from one State to another, 
or the otfering- for sale in the District of Columbia and the Territories 
of articles declared by the act to be adulterated or misbranded. 

DEFINITIONS. 

It defines the term '' drug-."" as including all medicines and prepara- 
tions recognized in the United States PharmacopoMa or National 
Fornuilary for internal or external use, and any substance or mixture of 
substances intended to be used for the cure, mitigation, or prevention 



2 PURE FOOD. 

of disease of either man or animal, it detines the term "'food'' as 
including- all articles used for food, drink, confectionery, or condiment 
b}' man or animal. 

ADULTERATIONS. ''* "p^^ ^_ 

It describes what shall be considered under the provisions of the ' 
act as adulterations, traffic in which is regulated or forl)idden by 
the act. 

ADULTERATION IN DRUGS. 

It prescribes that a drug shall be considered as adulterated if when 
sold under the standard recognized in the United States Pharmaco- 
p(eia or National Formulary it differs from the standard of strength, 
quality, or purity, as laid down therein, or if its strength or purity 
differ from anv other professed standard or quality under which it is 
sold. 

ADULTERATION IN CONFECTIONERY. 

It prescribes that confectionery shall be deemed adulterated if it 
contain terra alba, barytes, talc, chrome ^^elloAV. or other mineral sub- 
stance, or poisonous color or flavor, or other ingredient deleterious or 
detrimental to health. 

ADULTERATION IN FOOD. 

It prescribes that food shall be adulterated (including under the term 
both food, drink, and condiment): 

First. If an}' substance has been mixed and packed with it so as to 
reduce or injuriously affect its qualit}' or strength. 

Second. If any substance has been substituted wholly or in part. 

Third. If any valuable constituent has been abstracted whollj' or in 
part. 

Fourth. If it be mixed, colored, powdered, coated, or stained in a 
manner whereby damage or inferiorit}" is concealed. 

Fifth. If it contain any added poisonous or deleterious ingredient 
which may render such article injurious to health. 

Sixth, if it consists in whole or in part of a filthy, decomposed, or 
putrid animal or vegetable substance, or an}^ portion of an animal 
unlit for food, or if it is the product of a diseased animal or one that 
has died otherwise than by slaughter. 

MISBRANDED. 

It provides that articles covered by the act shall be deemed "mis- 
branded" when the package or label shall Ijear any statement regard- 
ing the ingredients which shall be false or misleading in any particu- 
lar, or which shall falsely state the State. Territory, or country where 
manufactured or produced. It further provides that a drug shall be 
deemed "misbranded" if it be an imitation of or offered for sale under 
the name of anothci article; or if the contents of the original package 
shall have been removed in whole or in part and other contents placed 
in the package; or if it fail to bear a statement on the label of the 
(juantity or proportion of alcohol therein, or of an\' opium, cocaine, or 
other poisonous substance therein. 

/ 

I UN --: IbUti / 

D.ofO. 



PUKE FOOD. 3 

Jt provides that a food (or drink) shall be deemed misbranded: 

First. If it be an imitation of, or offered for sale under the distinc- 
tive name of another article. 

Second. If it be labeled or branded so as to deceive or mislead the 
purchaser or falsely purport to be a foreign product. 

Third. If in package form the quantit}' of the contents of the pack- 
age be not plainly and correctly stated in terms of weight or measure 
on the outside of the package. 

Fourth. If the package containing it, or its label, shall bear any 
false or misleading statement, design, or device regarding the ingre- 
dients. 

WHEN NOT ADULTERATED OR MISBRANDED. 

It is provided, however, that an article of food shall not be con- 
sidered adulterated or misbranded if it does not contain any added 
poisonous or deleterious ingredients in the following cases: 

First. In the case of mixtures or compounds, known as articles of 
food under their own distinctive names and not an imitation of or 
offered for sale under the distinctive nanie of another article, pro- 
vided the label or brand shall contain a statement where the article 
has been manufactured or produced. 

Second. In the case of articles labeled, branded, or tagged, so as to 
plainly indicate that they are compounds, imitations, or blends. And 
in this connection the bill describes the word '"'■ blend" as used therein 
to mean a mixture of like substances, not excluding harmless coloring 
or flavoring ingredients. It is further provided that manufacturers 
of proprietary^ articles which contain no unwholesome added ingre- 
ent shall not be required to disclose their trade formulas except in so 
far as may be necessary to prevent adulteration or misbranding. 

PROTECTION FOR RETAIL DEALERS. 

As the principal purpose of the bill is to prevent interstate and for- 
eign commerce in adulterated or falsely-branded articles of food, drink, 
and medicine, the committee has inserted in the bill a provision intended 
to protect all persons dealing in the articles subsequent to the manu- 
facturer or importing agent. 

Section 8 of the bill provides that no dealer shall be convicted when 
he is able to prove a guaranty of conformity with the provisions of 
the act signed b}^ the manufacturer or the part}" from whom he pur- 
chased. The section requires that the guarantor shall reside within the 
United States and that the guaranty shall contain his full name and 
address. 

In other sections of the bill there are provisions for collecting sam- 
ples or specimens and the examination of such in order to determine 
whether they are adulterated or misbranded, and the bill provides that 
an}^ party from whom a sample was obtained shall be given an oppor- 
tunity to be heard before the Secretary of Agriculture shall certify to 
the United States district attorney the results of an examination of the 
article as the basis for prosecution; so that if samples of goods shall be 
taken from a retail or wholesale dealer who has received a guaranty of 
conformity with the provisions of the act from the person who sold to 
him, he will be relieved from prosecution, and any penalty which ma\' 
attach under the act will be directed to the original guarantor. 



4 PURE FOOD. 

Those cjuofully prepured provisions of tiie bill will prevent any 
dealer heino- put to the expense of a proseeiition where he takes the 
precaution to protect himself In' retiuirino- a i«uaiant\ . 

STANDARDS OF FOOD. ' A A 

We retdize that it is not possible for C'onoress to determine the 
wholesonieness or unwholesomeness of each food product, or to tix by 
legislative act the standard which shall be accepted as com])lyinu- with 
well-known names of food articles. ^^^^ realize that in the end the 
determination of the standard of a food article under a given name 
may be one to be settled l)y the courts. It is, however, essential to 
the' success and operation of any pure-food measure that standards of 
food products shall be arrived at for the guidance of the officials 
charged with the administration of the law and often for the informa- 
tion of the courts. 

One of the principal objects of a national pure-food law is to obtain 
uniformity of food standards among the States, which are supreme 
within their own borders. The intention of the makers of the Consti- 
tution and the founders of the Republic that commerce betw^een the 
States should be free and unhampered has been largely nullitied as to 
food products l)y the varying requirements as to standards and labels 
in different States. In one State one stiindard may be required for a 
named article and in the adjoining State a different standard ffxed: 
and where the same standard is agreed upon in a group of States for 
precisely the same article different labels may be required in each of 
them, so that the producer or manufacturer is compelled to not onl}^ 
have complete knowledge of the various State laws, but under penalty 
is required to carefully see to it that a package of goods intended to 
meet the requirements of one State shall not by error be sent into 
another State. This has a tendency to prevent the development of 
small jobbing and wholesale cities, because the small jobber perhaps 
can not well afford to carry in stock what in fact is the same article 
properly labeled for a number of different States surrounding him. 

It is therefore provided in the bill that the Secretary of Agriculture 
shall rix the standard of food products when advisable, and that to aid 
him in reaching just decisions, he is authorized to call upon the com- 
mittee on food standards of the Association of Official Agricultural 
Chemists and the committee of standards of the Association of State 
Dairy and Food Departments, and such other experts as he may deem 
necessary. 

PRESEltVATIVES. 

The use of preservatives in some form and to some extent has 
become well-nigh universal in our country as to certain classes of food 
products. It is contended by some that pieservatives are injurious 
and unwholesome: by others that in small (piantities they are harm- 
less and necessary for proper preparation of footl articles. It is con- 
tended by some that a preservative, when introduced into the human 
system, retpiires an extra and unusual amount of work on the part of 
the organs of the body to get rid of it, and that though a preservative 
in very small quantities may seem harmless, that, in fact, to the extent 
to which it exists, it is to a degree injurious to the system in the long 
run. 



PURE FOOD. 0? 

It is, of course, admitted that food nnist bo preserved i)i some man- 
ner, and it is o-enerally admitted that if food can not be preserved in 
any other manner than by the addition of small quantities of preserv- 
atives, such as boric acid, salic3dic acid, benzoic acid, or similar sub- 
stances, that it is better for mankind to suffer the injury caused by the 
preservative rather than to do without food which has been kept for a 
time. Some claim that food can be preserved in sufficient ([uantities 
and for a sufficient length of time without the use of these artificial 
preservatives. 

Others claim that these preservatives are essential to the manufac- 
tui-e, keeping, and use of many articles of food. The question is one of 
tremendous importance. On the one hand, it affects the health of the 
whole community; on the other hand, it may determine the continu- 
ance of great business enterprises. No one desires to injuriously afi'ect 
the health of the comnumity in order to benefit a manufacturing inter- 
est, and no one desires to injure the manufacturing interest by forbid- 
ding the use of a preservative unless that preservative, in the amount 
used, is in fact injurious to the public health. 

Your committee has not undertaken to determine the wdiolesome- 
ness of preservatives. By the bill it is provided that before the Secre- 
tar\' of Agriculture shall make decision concerning the wholesomeness 
or unwholesomeness of a preservative or other substance which may 
be added to foods, any person interested may ask for the appointment 
of a special board for the purpose of considering the matter and advis- 
ing the Secretary of Agriculture. It is provided that this board shall 
consist of 1 toxicologist, 1 physiological chemist, 1 bacteriologist, 1 
pathologist, and 1 pharmacologist. 

POLICE POWERS OF THE STATE ^OT INTERFERED WITH. 

It is expresslv provided by the bill that it shall not be construed to 
interfere with commerce wholh' internal in an}- State nor with the exer- 
cise of the police powers of the States, but foods and drugs fully com- 
plying with all the provisions of the act shall not be interfered with by 
the State authorities when brought from another State so long as they 
remain in original unbroken packages, except as may l)e otherwise 
defined by law or provided by the statutes of the United States. 

NECESSITY FOR NATIONAL PURE- FOOD LAW. 

The necessity for pure-food laws is apparent to everyone. Many 
of the States have endeavored to meet this necessity, so far as they 
can, within their own respective borders, but the several States have 
proven unal)le to fully deal with the matter when affected by inter- 
state connnerce in adulterated and mis))randed articles. It is essential 
that there be some national legislation as an aid to State legislation 
against impure foods and drugs. Then, again, the laws and regula- 
tions of the different States are diverse, confusing, and often contra- 
dictory. AA^hat one State now requires the adjoining State ma\' for- 
bid. Our food products are not raised principally in the States of 
their consumption. 

State boundary lines are unknown in our commerce, except l)v reason 
of local regulations and laws, such as Statv ])u re-food laws. It is 
desirable, as far as possible, that the connnerce between the States be 







PURE FOOD. 



unhindered. One of the hoped-for good results of a national law on 
the subject of pure foods is the brinoino- about of a luiiformity of laws 
and regulations on the part of the States within their own several 
borders. It is believed that the tixing- of food standards through the 
aid, in part, of the State food otHcials in collaboration with the Ag-ri- 
cultural Department will have the happy result of final uniform food 
staiidards and regulations in the diti'erent States. 

VAlilOUS HILLS INTRODUCED IN CONGRESS. 

Legislation regarding interstate commerce in foods has been con- 
stantlv l)efore the Congress of the United States for about eighteen 
years.' Senate bill No. 3991, introduced June 3, 1890, by Mr. Paddock, 
passed the Senate about fourteen years ago. Since then the following 
pure-food bills have been introduced in the Senate and the House: 

SENATE BILLS. 



No. 


Date. 


Introduced by — 


• No. 


Date. 


Introduced by- 


3991 


June 3,1890 


Mr. Paddock. 


3796 


Mar. '26,1900 


Mr. Jone.s. 


1 


Dec. 10,1891 


Do. 


4047 


Apr. 6, 1900 


Mr. Foster. 


um 


Jan. 11,1892 


Mr. Hiscock. 


2426 


Jan. 15,1900 


Mr. Mason. 


•2984 


Apr. '22,1892 


Mr. Wilson. 


5262 


Dec. 18,1900 


Do. 


S796 


Jan. 30,1893 


Mr. Faulkner. 


1347 


Dec. 9, 1901 


Do. 


471 


Mar. 18,1897 


Mr. Gallinger. 


3015 


Jan. -20,1902 


Do. 


401.T 


Mar. 2.1S98 


Mr. Faulkner. 


2987 


do 


Mr. Cullom. 


4144 


Mar. 16,1898 


Do. 


3'240 


Jan. 27,1902 


Mr. Depew. 


r->:i-h 


Jan. 27,1899 


Mr. Thurston. 


3342 


Jan. 29,1902 


Mr. Han.sbrougli. 


•2048 


Jan. 3, 1900 


Mr. Allen. 


6303 


June '28, 1902 


Mr. McCumber. 


■2049 


do 


Do. 


198 


Nov. 11,1903 


Do. 


•2O.'i0 


do 


Do. 


88 


Dec. 6,1905 


Mr. Hevburn. 


•2-2'22 


Jan. 8,19t0 


Mr. Hansbroiis^li. 


3623 


Jan. '24,1906 


Mr. Hopkins. 


3618 


Mar. 1.5,1900 


Mr. Proctor. 









HOUSE BILLS. 



•283 


Dec. 


18, 1889 


Mr. Concrcr. 


276 


Dec. 


2, 1901 


Mr. Sherman. 


11 '297 


Julv 


.s. 1S90 


Mr. Turner, of Kansas. 


3109 


Dee. 


6, 1901 


Mr. Hepburn. 


109 


Jan. 


5, 1892 


Mr. Holmaii. 


4342 


Dec. 


10, 1901 


Mr. Kahn. 


4438 


Jan. 


21. 1892 


Mr. Smith, of Illinois. 


9351 


Jan. 


18.1902 


Mr. Warner. 


8603 


Mav 


6,1892 


Mr. Meredith. 


9960 


Jan. 


23. 1902 


Mr. Slienuan. 


11490 


Jan". 


9, 1899 


Mr. (xrout. 


9352 


Jan. 


18,1902 


Mr. Mann. 


4618 


Dec. 


18, 1899 


Mr. Babcock. 


12348 


Mar. 


10, 1902 


Mr. Corliss. 


6442 


Jan. 


16,1900 


Mr. Glvnn. 


5077 


Nov. 


•27.1903 


Mr. Hepburn. 


7667 


Jan. 


30, 1900 


Mr. Sherman. 


6295 


Dec. 


8,1903 


Do. 


6441 


Dec. 


18, 1897 


Mr. Brositis. 


6295 


Jan. 


'21,1904 


Do. 


91.54 


Mar. 


1.5,1898 


Do. 


4527 


Dec. 


6, 1905 


Do. 


2561 


Dec. 


7, 1899 


Do. 


7018 


Dec. 


13, 1905 


Mr. Davidson. 


6246 


.Ian. 


15. lyoo 


Do. 


12071 


Jan. 


16,1906 


Mr. Lorimer. 


9677 


Mar. 


16,1900 


Do. 


13859 


Fcl). 


2,1906 


Mr. Rodenberg. 


12973 


Dec. 


19,1900 


Do. 











PURE FOODS. 

The purpose of th(> pending measure is not to com])eI ])eople to con- 
sume particular kinds of foods. It is not to com])el manufacturers to 
produce particular kinds or grades of food. One of the principal 
ol)jects of the bill is to prohibit in the manufacture of foods intended 
for interstate commerce the addition of foreign substances poisonous 
or deleterious to health. The bill does not relate to any natural con- 
stituents of food products which are placed in the foods t)v nature 
itself. It is Mell known that in many kinds of foods in their natural 
state .some (|uantity of poisonous or deleterious ingredients exist. 
How^ far these substances mav ))e deleterious to health when the food 



PURE FOOD. 7 

articles containing- them are consumed may be a subject of dispute 
between the scientists, but the bill reported does not in any way con- 
sider that question. If, however, poisonous or deleterious substances 
are added by man to the food product, then the bill declares the article 
to be adulterated and forbids interstate traffic. 

The question whether certain substances are poisonous or deleterious 
to health the bill does not undertake to determine, but leaves that to 
the determination of the Secretary of Agriculture under the guidance 
of proper disinterested scientific authorities, after most careful stud}', 
examination, experiment, and thorough search. 

While the provisions of the bill forbid the adulteration of food prod- 
ucts, they also attempt to give a measure of protection to the con- 
sumer by forbidding interstate traffic in falsely labeled or branded 
articles. The theory of the bill is that the consumer of food products 
is entitled to consume whatever he may wish, but that he is also 
entitled, when he purchases an article purporting to be one thing, not 
to be cheated by having some inferior or different article passed off on 
him. The })asis of the bill is to require at least a fair degree of honest 
dealing. 

From a careful study of the data which have been considered by the 
committee through extensive hearings in this and former Congresses, 
it is certain that there is an immense amount of deception, fraud, and 
deliberate swindling practiced by the misbranding of food products. 
False and misleading claims are often found attached as a part of the 
label to food products. False statements of origin or of the country 
in which the substance is produced are often found. Where a par- 
ticular State or locality has managed to build up a reputation for its 
products and thereby enhance their market value, it has become a 
somewhat conmion practice for manufacturers in other sections of the 
country to steal the name of the favored State or locality and thereby 
endeavor to steal the benefit of an enhanced price. This is unfair, 
both to the consumer and to the locality or State which is named. 
The pending measure forbids the entry into interstate commerce of 
such fraudulent labels and misleading descriptions. 

Under the term "food" has been included not oidy ordinary foods, 
but also drinks, confectionery, and condiments. It has been shown 
by the researches of distinguished physiological chemists that bever- 
ages generallv contain food products which, by their oxidation, fur- 
nish heat and energy, and also in many cases upbuild tissues and restore 
waste. Therefore, a food in liquor form may be considered from the 
same standpoint as any other food. Condiments are essential to modern 
food consumption and are, therefore, very properly included under 
the class of foods. 

HONEST THAUE NEED NOT FEAR ITS PROVISIONS. 

The penalties of the bill are aimed at cheats. That which is for- 
bidden is the sale of goods under false pretenses, or the sale of poisonous 
articles as good food. No honest dealer need fear any provision in the 
bill. Legitimate trade should welcome its enactment into law. Only 
those wishing to deceive the pul)lic will object to its provisions. It 
simply requires honesty of labeling and the exclusion of injurious 
added products. He who wishes to sell 14 ounces as a pound, or to 
sell a cheap-trade article with a high-grade label at the price of the 



8 PUBE FOOD. 

latter (iiiality will doiiouiico the bill as an invasion of the rights of 
trade, as an interference with the freedom of connneree. as an outrage 
upon the property rights of men. In the competition of modern busi- 
ness life it becomes necessary to give some protection to the legitimate 
maimfacture and dealer as against his dishonest and unscrupulous 
rival who unfairly con) petes with imitations and spurious articles of 
poor (|uality. 

Adulteration of food of a harmful character has become prevalent to 
an alarming extent and, inspired by the cupidity of dishonest men, 
these adulteratioDs are rapidly increasing, so that in many classes of 
foods it is difficult to obtain a pure article. 

We believe everyone recognizes the necessity of governmental regu 
lations to prevent the sale of adulterated, poisonous, or other injurious 
food products. The sand with which our forefathers are reputed to 
have adulterated their sugar, while a fraud upon the purchaser, was 
doubtless comparatively harmless. The adulterations of the present 
day are neither so clumsy nor, as a rule, so harmless. The ingenuity 
of man has been bus}' during the last half century in devising new 
forms of machinery, neW' methods of commercial enterprise, new ideas 
and new things in ever}^ branch and w^alk of life, including, new pro- 
cesses of cheapening the cost of the production of articles of food, 
drink, and drug by the use of mixtures, adulterants, and preservatives. 

In so far as these are harmless and are not used as a fraud upon the 
purchaser or user they may be of great benefit, but the ingenuity of 
man in providing either the adulteration or the preservation of food 
products by the use of substances which are injurious and harmful to 
the human system nuist be met by governmental restraint. The \ari- 
eties of adulterations are so numerous and so different in character that 
it is impossible to refer to them here even b}' general classes. Almost 
every known article of good food has to compete in the market with a 
similar article which has been adulterated in some form or its apparent 
freshness maintained by the use of a preservative. 

The proposed bill is not the suggestion of a moment. It does not 
represent the opinion of a mere individual. It is the outgrowth of the 
agitation of many years and represents the suggestions, criticisms, 
propositions, and ett'orts of many minds. It is the epitome of the best 
thought on the subject in our land to-day. The main provisions of 
the substitute Hep})urn bill, which we now recommend for passage, 
have been at different times favorably acted upon by both House and 
Senate. They have been approved by thi-ee successive national pure- 
food congresses and by many scientific bodies, sanitary congresses, 
and medical and business associations throughout the United States. 
We do not presume that the legislation wc suggest will be found per- 
fect. We do not doubt that in some respects it will be ineffective. 
In some particulars the bill ma}' not go far enough and in others it 
may go too far. I^ut whatever may he its merits or defects it repre- 
sents the eai'ucst thought and work of j^our committee. 

It was not drawn to aid any special interests. It has not been framed 
by, or at the behest of, any class of trade which will be specially bene- 
fited thereby. It is not designed for the purpose of specially protect- 
ing one legitimate interest or of injuring another legitimate interest. 
The committee has steered clear of those special interests, some of 
which desire provisions in the bill which would aid them, and some of 
which desire provisions in the bill which would injure their business 



PUEE FOOD. 9 

rivals. Nothing has been written into the bill either by greed or env3\ 
The bill is what it purports to be, a measure in the interest of honest 
dealing and wholesome foods. 

OFFICIALS TO CARRY OUT THE LAW. 

The bill pro\ndes that the law shall be carried out under uniform 
rules and regulations to be made l\v the Secretaries of the three depart- 
ments, to wit: Treasur}^, Agriculture, and Commerce and Labor. It 
is not designed to add a vast number of employees to the Government 
service. If the bill becomes a law no additional employees can be 
added except as may be authorized by appropriations hereafter made 
by Congress. Nor will there be any considerable number of employees 
required in any event. The officials of the National Government hav- 
ing charge of the enforcement of the law will cooperate with the State 
food, dairy, and drug officials. 

The prosecutions which will l)e commenced by the national authori- 
ties will be mainly directed against the manufacturers of food products; 
or, if it be impossible to find the manufacturer, against the jobbers and 
wholesale dealers. If the State officials cooperate, the}' will call the 
attention of the national authorities to the existence of adulterated and 
misbranded articles within the State borders. These articles will be 
examined under the direction of the Bureau of Chemistry; and if found 
contrary to the provisions of the act, then prosecutions will be com- 
menced against the manufacturer, who will be known l)v his guaranty. 
There will be no occasion for many officials in the employ of the Gov- 
ernment and no occasion for great expense. 

It is not proposed by the bill to interfere in any way with the power 
of the State officials over local trade, ]>ut the purpose of the bill is to 
give to State officials the aid of the National (xoverimient and to receive 
from the State officials their aid in the enforcement of the national law. 

The passage of this bill is in the interest of protecting the weak 
from the powerful, the poor consumer from the rich manufacturer. 

The laboring man or artisan, who knows his own trade, but who ma\^ 
not be an expert in the quality of foods or their imitations or adulter- 
ations, is entitled to the protection of the State to the extent that 
when he purchases an article for the consumption of his family he 
receives what he pays for, and further, to know that the food wdiich 
he buys and eats shall give him strength and vigor instead of contain- 
ing some harmful substance or poison which, in* the end. breaks doW'U 
his health. What is true of such a man is true of all the rest of us. 
The public is entitled to protect itself against those who would cheat 
and defraud it in those necessaries of life where one can not tell the 
spurious from the genuine, either by casual exaniination or b}'^ 
consumption. 

We think it is the duty of the State to give to the public the meas- 
ure of protection ottered by the provisions of the bill w^hich we have 
recommended for passage. 

committp:e amendment. 

Amend the bill by striking out all after the enacting clause and 
inserting in place thereof as a substitute the following: 

That the introduction into any State or Territory or the Di><trict of Columbia from 
any other State or Territory or the District of Cohuiibia, or from any foreign country, 



10 PURE FOOD. 

or shipment to any foi-eign eonntry of any article of food oi drags which is adulter- 
ated or niisbranded, within the meaning of this act, is hereby prohibited; and any 
person who shall ship or deliver for shipment from any State or Territory or the Dis- 
trict of Columbia to any other State or Territory or the District of Columbia, or to a 
foreign country, or who shall receive in any State or Territory or the District of 
Columbia from any other State or Territory or the District of Colunil)ia, or foreign 
country, or who, having received, shall deliver, in original unbroken packages, for 
pay or otherwise, or offer to deliver to any other person, any such article so adulter- 
ated or misbranded within the meaning of this act, or any person who shall sell or 
offer for sale in the District of Columl)ia or the Territories of the Ignited States any 
such adulterated or misbranded foods or drugs, or export or offer to export the same 
to any foreign country, shall be guilty of a misdemeanor, and for such offense be 
lined not exceeding two hundred dollars for the first offense, and upon conviction for 
each subsequent offense not exceeding three hundred dollars or be imprisoned not 
exceeding one year, or both, in the discretion of the court: Prorided, however, That no 
person shall be liable to the penalty of imprisonment as provided herein unless he 
knowingly committed the offense charged: Provided further, That no article shall be 
deemed misbranded or adulterated within the provisions of this act when intended 
for export to any foreign country and pi'epared or packed according to the specilica- 
tions or directions of the foreign purchaser when no substance is used in the prepara- 
tion or packing thereof in conflict with the laws of the foreign country to which said 
article is intended to be shipped; but if said article shall be in fact sold or offered for 
sale for domestic use or consumption, then this proviso shall not exemj)t said article 
from the operation of all the other provisions of this act. 

Sec. 2. That the Secretary of the Treasury, the Secretary of Agriculture, and the 
Secretary of Commerce and Labor shall make uniform rules and regulations for car- 
rying out the provisions of this act, including the collection and examination of speci- 
mens of foods and drugs manufat'tured or offered for sale in the District of Columbia 
or in any Territory of the United States, or which shall be offered for sale in 
unbroken packages in any State other than that in which they shall have been 
respectively manufactured or produced, or which shall be received from any foreign 
country, or intended for shipment to any foreign country, or which may be submit- 
ted for exauiinatiou by the chief health, food, or drug officer of any State, Territory, 
or the District of Columbia, or at any domestic or foreign port through which such 
product is offered for interstate commerce, or for export or import between the 
United States and any foreign port or country. 

Sec. 8. That the examinations of specimens of foods and drugs shall be made in the 
Bureau of Chemistry of the Department of Agriculture, or under the direction and 
supervision of such Bureau, for the purpose of determining from such examinations 
whether such articles are adulterated or misbranded within the meaning of this act; 
and if it shall appear from any such examination that any of such specimens is adul- 
terated or misbranded within the meaning of this act the Secretary of Agriculture 
shall cause notice thereof to be given to the party from whom such sample was 
•obtained. Any party so notified shall be given an opportunity to be heard, under 
such rules and regulations as may be prescril^ed as aforesaid, and if it appears that 
any of the provisions of tliis act have been violated by such jiarty, then the Secretary 
of Agri(;ulture shall at once certify the facts to the jiroper Tnited States district attor- 
ney, with a copy of the results of the analysis or the examination of such article, 
duly authenticated by thQ analyst or officer making such examination, under the 
oath of such officer. After judgment of the court notice sliall be gi\'en by publica- 
tion in such manner as may be prescribed by the rules and regulations aforesaid. 

Sec. 4. That it shall be the (Inty of each district attorney to whom the Secretary 
of Agricultui'e shall report any violation of this act, or to whom any health or food 
or drug officer or agent of any State, Territory, or the District of Columbia shall 
present satisfactory evidence of any such violation, to cause appropriate jiroceedings 
to be connnenced and jjrosecuted in the |)roper courts of the [United States, without 
delay, for the enforcement of the penalties as in such case herein provided. 

Sec. 5. That the term "drug," as used in this act, shall include all medicines and 
})reparations recognized in the United States Pharmacopa>ia or National Formulary 
for internal or external use, and any substance or mixture of substances intended to 
l)e used for the cure, mitigation, or prevention of disease of either man or other 
animals. The term "food," as used herein, shall include all articles used for food, 
drink, confectionery, or condiment by man or other animals, whether simple, mixeil, 
or comj)ound. 

Sec. 6. That for the purposes of this act an article shall be deemed to be adulter- 
ated — 

In case of drugs: 

First. If, when a drug is sold under the standard recognized in the United States 
Pharmacopteia or National Formulary, it differs from the standard of strength, qual- 



PURE FOOD. 11 

ity, or purity, as determined by the test laid down in the United States Pharmacopana 
or National Formulary official at the time of the investig:ation. 

Second. If its strength or puritji differ from any other professed standard or quality 
under which it is sold. 

In the case of confectionery: 

If it contain terra alba, barytes, talc, chrome yellow, or other mineral substance 
or poisonous color or flavor, or other ingredient deleterious or detrimental to health. 

In the case of food: 

First. If any substance has been mixed and packed with it so as to reduce or lower 
or injuriously affect its quality or strength. 

Second. If any substance has been substituted wholly or in part for the article. 

Third. If any valuable constituent of the article has been wholly or in part 
abstracted. 

Fourth. If it be mixed, colored, powdered, coated, or stained in a manner whereby 
damage or inferiority is concealed. 

Fifth. If it contain any added poisonous or other added deleterious ingredient 
which may render such article injurious to health: Provided, That when in the prepa- 
ration of food products for shipment they are preserved by an external application 
applied in such manner that the preservative is necessarily removed mechanically, 
or by maceration in water, or otherwise, the provisions of this act shall be construed 
as applying only when said products are ready for consumption. 

Sixth. If it consists in whole or in part of a filthy, decomposed, or putrid animal 
or vegetable substance, or any portion of an animal unfit for food, whether manufac- 
tured or not, or if it is the product of a diseased animal, or one that has died other- 
wise than by slaughter. 

vSec. 7. That the term " misbranded," as used herein, shall apply to all drugs, or arti- 
cles of food, or articles which enter into the composition of food, the package or label 
of which shall bear any statement regarding the ingredients or substances contained 
in such article, which statement shall be false or misleading in any particular, and to 
any food or drug product which is falsely branded as to the State, Territory, or 
country in which it is manufactured or produced. 

That for the purposes of this act an article shall also be deemed to be misbranded: 

In case of drugs — 

First. If it be an imitation of or offered for sale under the name of another article. 

Second. If the contents of the original package shall have been removed, in whole 
or in part, and other contents shall have been placed in such package, or if it fail to 
bear a statement on the label of the quantity or proportion of any alcohol therein, 
or of any opium, cocaine, or other poisonous substance which may be contained 
therein. 

In the case of fooil — 

First. If it be an imitation of or offered for sale under the distinctive name of 
another article. 

Second. If it he la!)eled oi- branded so as to deceive or mislead the purchaser, or 
l>urport to be a foreign product when not so. 

Third. If in ])ackage form, the quantity of the contents of the j)ackage be not 
plainly and correctly stated in terms of weight or measure, on the outside of the 
package. 

Fourth. If the package containing it or its label shall bear any statement, design, 
or device regarding the ingredients or the substances contained therein, which state- 
ment, design, or device shall be false or misleading in any particular: Provided, 
That an article of food which does not contain any added poisonous or deleterious 
ingredients shall not be deemed to be adulterated or misbranded in the following 
cases: 

First. In the case of mixtures or compounds which may be now or from time to 
time hereafter known as articles of food, under their own (Ustinctive names, and not 
an imitation of or offered for sale under the distinctive name of another article, if 
the name be accompanied on the same label or brand with a statement of the place 
where said article has been manufactured or produced. 

Second. In the case of articles lal^eled, branded, or tagged so as to plainly indi- 
cate that they are compounds, imitations, or blends: Provided, That the term" blend 
as used herein shall be construed to mean a mixture of like substances not exckul- 
ing harmless coloring or flavoring ingredients: A^id prnridt'd finilier, That nothing in 
this act shall he construed as requiring or compelling proprietors or manufacturers 
of proj)rietary foods which contain no unwholesome added ingredient to disclose 
their trade formulas, except in so far as the provisions of this act may require to 
secure free< lorn from adulteration or mishran<ling. 

Sec. 8. That no dealer shall be convicted under the i)rovisions of this act when he 
is able to prove a guaranty of conformity with the provisions of this act in form 
approved by the rules and regulations herein provided for, signed by the manufac- 



12 PURE FOOD. 

turer or the party or parties from whom he purchased «iid articles: J'rorided, That said 
iriiarantor resides witliin the United States. Said guaranty shall contain the full name 
and address of the guarantor making the sale to the dealer, and said guarantor shall 
he amenable to the prosecutions, fines, and other penalties which would otherwise 
attach in due course to the dealer under the provisions of this Act. 

Sec. 9. That it shall be the duty of the Secretary of Agriculture to fix standards 
of food products when advisable for the guidance of the otHcials charged with the 
administration of food laws and for the information of the courts, and to determine 
the wholesomeness or unwliolesomeness of preservatives and other substances which 
are or may be added to foods; and to aid him in reaching just decisions in such mat- 
ters he is authorized to call upon the committee on food standards of the Association 
of Official Agricultural Chemists, and the committee of standards of the Association 
of State Dairy and Food departments, and such other experts as he may deem neces- 
sary. And upon recjuest made to the Secretary of Agriculture prior to reaching any 
decision as provided for in this section, by any manufacturer or other {lerson inter- 
ested, asking for the ai)i)ointn)ent of a board to determine the wholesomeness or 
un wholesomeness of any preservative or other substance which is or may be added 
to foods, and concerning the use of which the person making the recjuest has an 
interest, it shall be the duty of the Secretary of Agriculture to appoint a board of 
disinterested ex{)erts, which board shall consist of five members, one of whom shall 
be an expert toxicologist, one an expert physiological chemist, one an expert bacte- 
riologist, one an expert pathologist, and one an expert pharmacologist, which board 
shall meet at the city of Washington, D. C, or elsewhere, at the call of the Secretary 
of Agriculture, and pass upon such question after proper notice and hearing trranted 
to the person making such request. The compensation of the meml)ers of such board 
shall be fixed by the Secretary of Agriculture. 

Sec. 10. That every person who manufactures or })roduces for shipment and 
delivei's for transportation within the District of Columbia or any Territory, or who 
manufactures or produces fer shipment or delivers for transportation from any State, 
Territory, or the District of Columbia, to any other State, Territory, or the District 
of Columbia, or to any foreign country, any drug or article of food, and every person 
who exposes for sale or delivers to a purchaser in the District of Columbia or any 
Territory any drug or article of food manufactured or produced within said District 
of Columbia or s.ny Territory, or who exposes for sale or" delivers for shipment any 
drug or article of food received from a State, Territory, or the District of Columbia 
other than the State, Territory, or the District of Columbia in which he exposes for 
sale or delivers such drug or article of food, or from any foreign country, shall fur- 
nish within business hours and upon tender and full paym^^nt of the selling price a 
sample of such drug or article of food to any jwrson duly authorized by the rules and 
regulations herein provided for to receive the same, and who shall apply to such 
manufacturer, |)roducer, or vendor, or pei-.son delivering to a purchaser, such drug 
or article of food, for such sample for such use, in sufficient quantity for the analysis 
of any such drug or article of food in his possession. 

Sec. 11. That any manufacturer, producer, or dealer who refuses to comply, upon 
demand, with the I'equirements of section ten of this act shall be guilty of a misde- 
meanor, and upon conviction shall l)e lined not exceeding one hundred dollars, 
or imprisoned not exceeding one hundred days, or both. And any i)erson found 
guilty of manufacturing or offering for sale, or selling, an adulterated or misbranded 
article of food or drug ii] violation of the provisions of this act may, in the discretion 
of the court, be adjudged to pay, in addition to the jienalties hereinbefore provided 
for, all the necessary costs and expenses incurred in inspecting and analyzing such 
adulterated articles which said person may have been found guilty (^f manufactur- 
ing, selling, or offering for .sale. 

Sec. 12. Tliat this act shall not be construe<l to interfere with commerce wholly 
internal in any State, nor with the exercise of their jiolice powers by the, several 
States; but foods and tlrugs fully complying with all the provisions of this act shall 
not be interfered with l)y the authorities of the several States when transported from 
one State to another so long as they remain in original unbroken packages, except as 
may be otherwise defined by law or provided by statutes of the United States. 

Sec. 13. That any article of food or drug that is adulterated or misl)randed within 
the meaning of this act, and is transported or being transported from one State to 
another for sale, or if it l)e sold or offered for sale in tlie Districtof Columbia or any 
Territory of the United States, or if it be imported ivom a foreign cmmtry for sale, or 
if intended for export to a foreign country, shall be lialile to be proceeded against in 
any district court of the United States, within the district where the same is found, 
and seized by a jirocess of libel for condenniation. And if such article is condemned 
as being adulterated or misbranded, within the meaning of this act, the same shall 
be disposed of as the said court may direct, and the proceeds thereof, if sold, less the 



PURE FOOD. 13 

legal co.st.s and charges, shall be paid into the Treasury of the United States, but such 
goods shall not be sold in any State contrary to fhe laws of that State. The proceed- 
ings of such libel cases shall conform as near as may be to proceedings in admiralty, 
except that either party may demand trial by jury of any issue of fact joined in sucli 
case; and all such proceedings shall be at the suit of and in the name of the United 
States. 

Sec. 14. That the Secretary of Agriculture is atithorized to investigate the character 
and extent of the aduheration of foods and drugs, and whenever he has reason to 
believe that articles are being imported from foreign countries which by reason of 
such adulteration are dangerous to the health of the people of tlie United States, or 
are of kinds which are forbidden entrv into or forbidden to be sold or restricted in 
sale in the countries in which they are made or from which they are exported, or 
which shall be falsely labeled in any respect, either by the omission of the name of 
any added ingredient or otherwise, or in regard to the place of manufacture, or the 
contents of the package, shall make a recjuest upon the Secretary of the Treasury for 
samples from original packages of such articles for inspection and analysis; and the 
Secretary of the Treasury is hereby authorized to open such original packages and 
deliver specimens to the Secretary of Agriculture for the purpose mentioned, giving 
due notice to the owner or consignee of such articles, who may appear before the Secre- 
tary of Agriculture and have the right to introduce testimony ; and the Secretary of the 
Treasury shall refuse delivery to the consignee of any of such goods which the Secretary 
of Agriculture reports to him have been inspected and analyzed and found to be any 
of the kinds mentioned in this section: Frnrided, That the Secretary of the Treasury 
may deliver to the consignee such goods, pending examination and decision in the 
matter, on execution of a penal bond of the full invoice value of such goods, together 
with the duty thereon, and on refusal to return such goods for any cause to the cus- 
tody of the Secretary of the Treasury, when demanded, for the purpose of excluding 
them from the country, or for other purposes, said consignee shall forfeit the full 
amount covered by the bond. 

Sec. 15. That the term "territory" as used in this act shall include the insular 
possessions of the United States. 

Sec. 16. That this act shall be in force and effect from and after its passage: Pro- 
vided, however, That no penalties herein named shall be imposed until after the expi- 
ration of one year from the passage of the act. 

o 



}9th Congress, | HOrSE OF REPRESENTATIVES. jRept 2118, 

.:st Session. i j Part 2. 



TX 4 £3. 



(\-AL 



PURE FOOD. 



JNIakch 14, 1906. — Coininittod to the Committee of the Whole House on the state of 
the Union and ordered to be printed. 



Mr. Bartlett, from the Coniinittee on Interstate and Foreign Com- 
merce, submitted the following- as the 

VIEWS OF THE MINORITY. 

[To accompany S. 88.] 

The undersigned members of the Connnittee on Interstate and For- 
eign Commerce, being unable to agree with the report submitted on 
Senate bill SS, respectfulh' .submit the following reasons wh}" the}" can 
not concur in the report: 

The power of government to regulate the sale of food products and 
drugs, prohibit adulteration of the same, prescribe the manner in which 
they shall be branded, and tix the size and weight of the packages in 
which such food products and drugs shall be contained is admittedly 
an exercise of police power. We do not understand or believe, from 
our conception of the powers of Congress contained and specified in 
the Constitution of the United States, that Congress has the power or 
authority to enact police laws for the regulation of the manufacture, 
sale, or for the prevention of the adulteration of food, except so far 
as such laws may be made to apply to the District of Columbia, the 
Territories, and those localities over which Congress has, under the 
Constitution, exclusive jurisdiction. 

While we are in hearty accord with all efforts made for the purpose 
of having laws enacted to prevent the sale of impure or adulterated 
foods, or to prevent frauds and impositions upon the people by the 
sale of impure or adidterated food, we believe that the legislatures of 
the several States have full power and authority to enact such laws 
and to protect the people of the various States from fraud and impo- 
sition by the sale of impure or adulterated food and drugs. Nearly all 
of the States have enacted laws on the subject and are enforcing them. 
The power to protect the people of the various States in health, in 
morals, and general welfare is inherent in the States — was reserved to 
the States by the Constitution, was not delegated to the Congress of 
the United States, and remains there to be exercised by the States at 
the will and pleasure of the l(\gislatures of such States. 



2 PURE FOOD. 

We do not believe that it is true that the various States have failed 
or do fail to protect their citizens properly in the matter of impure 
food. The evideiice before the committee is to the contrary. Doctor-rv 4.- 
Wiley, the Chief of the Bureau of Chemistry, and who has been most \ ' 
ardent, insistent, and influential in advocatino' the passa^'e of a national ' " 
law on this subject, in his evidence before the Committee on Inter- 
state and ForeJo-n Connnerce of the House, })a<i-es 308, 301) of the 
hearings, stated: 

Doctor Wiley. By consent, yes, sir; but in these other cases we get a request for 
certified copies and send them. 

Mr. Bartlett. Certified copies of what? 

Doctor WiLEV. Of the food standards. 

Mr. Bartlett. What law makes tliat admissible? 

Doctor Wiley. It is because they were prepared for the advice of food officials and 
for the information of the courts. That was in the original act under which these 
were prepared. It was dropped out of the last act, but it was in the original act 
mider which these were prejjared, and it was for the use of food officials and for the 
information of the courts. That is what they were prepared for. Therefore we had 
a warrant of law to send them out, and the Secretary does that. 

Now, there is a list of the States that have adopted these standards. 

]VIr. TowxsEXD. How many of them are there, do you think — al)out how many? 

Doctor Wiley. Connecticut, Indiana, Kentucky, Maine, Nortli Dakota, Nebraska, 
and a numlier of others that some of these have been adopted in. Perhaps I had bet- 
ter read them. 

Mr. TowNSENi). Well, no; I do not care about that. 

Doctor Wiley. It is all down here, Mr. Townsend; that is, the States that have 
adopted them by act of legislature are stated here, and those that have adopted them 
by authority conferred on the food commissioner are here. 

Mr. Townsend. 1 thought you couM tell us generally. 

Doctor Wiley. Well, I could not without running over this list, because they are 
arranged here alphabetically; but all that information is there. 

I have also here the attitude of the States in regard to preservatives — those that 
forbid and those that permit their use. You will find that useful, because they are 
all classified, and you can get that readily. These are taken from the copies offi- 
cially sent to us in compiling the State laws. ^ 

Mr. Bartlett. Most of the States, if not all, have what they call pure-food laws, 
and most of them have commissioners — how many of the States? 

Doctor Wiley. Nearly all the States have foo<l laws, and al)out twenty, or perhaps 
a few more, of them have provided for the enforcement of those laws. The others 
are just laws without any methods of enforcement; and, in so far as I know, in those 
States the laws are not enforced. But where the law provides for a machinery to 
enforce the law, in most States it is enforced very rigidly. That is all brought out in 
this statement. 

Mr. Bartlett. That is what I want. So you say that where they have adopted 
these food laws and apj)ointed food commissioners or officers to watch the enforce- 
ment of them, they are enforced very properly? 

Doctor Wii.EY. Yes, very efficiently, as far as the State can go. And I will say 
this, Mr. Chairman, that in every State, I believe, where the statute has previously 
prescril)ed the standard, and, of course, required an act of the legislature, I believe 
in every other case these standards have been adopted by the food commissioners in 
toto. In fact, one State made a great mistake in adojiting the ])reliminary report we 
sent out for criticism, thinking it contained the oflicial standards, and now they are 
in a pickle to know what to do about it. They did not notice that it was only sent 
out as a preliminary suggestion and not as a standard at all; and of course the stand- 
ards as finally adopted would l)e very different from those which were at first pro- 
posed, l)ecause it is remarkal)ie how we get the information that we want wiieii we 
send these out and ask for criticisms, and thereby are enabled to construct finally a 
standard of high efficiency, not absolute accuracy, of course. 

Another witness, Mr. Williams, made the following- statement, 
page 15: 

Mr. Townsend. You are familiar with the ^Michigan law? 
Mr. Willi A.MS. Yes. 

Mr. Townsent). Do3Gr.'t that prohibit you from manfacturing and selling excepting 
under >hat label? 



PUEE FOOD. 3 

Mr. Williams. Yes, sir. 

Mr. Burke. Did you state in your oj)ening statement tliat the laws of these three 
States were substantially the same, and that they conform to the language of this 
bill? 

Mr. Williams. I said they were along the same general lines. The principle of 
the lav.s to a great extent and the wording of the laws are very similar — or, rather, 
this being a later production. House bill No. 4527 is very similar to the laws of those 
three States. The jioint that I was trying to bring out is that under thatlanguage the 
rulings luade by whoever administers the law could be changed in every change 
of administration. It is not at all likely that any one man is going to live forever and 
always be at the head of the dejjartment which would adminLslier this law. 

Mr. Richardson. How many of the States have i)ure-food laws? Don'tyou know, as 
a general proposition, that i)ure-food laws of the different States, as a general prac- 
tice, are a dead letter in the majority of the States as to the enforcement of them? 

J\lr. Williams. I would not say that. 

Mr. Bartlett. It does not seem so in Wisconsin. 

Mr. Williams. It is not a dead letter in the State of Michigan, in Wisconsin, nor 
Minnesota. It is not a dead letter in North Dakota nor South Dakota. It is not a 
dead letter in Pennsylvania, nor in Ohio, nor in Illinois, nor in Indiana. 

]\Ir. Richardson. Is it not a fact that the standards created by the different States 
with respect to?the sale of goods can not be effectually enforced 

Mr. Williams. Not without a lot of embarrassment of this kind. You have got 
to make your goods all alike and label them differently for each State, carrying in 
your stock of made-up goods a stock for every State in the country doing business. 
A jobber whose place of business is located on the borders of a State must carry a 
stock of goods to comply with the laws of those different adjacent States. 

Mr. Burke. You do not object to the law, but you want it uniform? 
■ Mr. Williams. We don't object to it, but we want it so we can comply with it. 

Mr. Richardson. If you had an act of Congress regulating this matter, the States 
could still enact their own statutes. 

]Mr. Willia.ms. I believe they can. 

Mr. Russell. Do you know f)f any State where the law is a dead letter? 

Mr. Williams. I do not know. I would also state that the law is actively enforced 
in Kentucky. 

Mr. Russell. Is there any difference in the enforcement of the law in the various 
States where you sell the goods? 

Mr. Williams. No, sir; no marked difference. They all seem to be very active. 

One of the purposes of the bill is to enable the manufacturers of 
food and dealers in food to disregard and violate the laws of the 
various States on the subject of pure food, and that has been one of 
the chief influences that have been advocating- the enactment of this 
bill into law. The hill deals purely with questions of police, such as 
•'Adulterations in drugs," ''Adulterations in confectionery," "Adul- 
terations in food," "Misbranding of packages of food," etc. The bill 
undertakes to establish standards for food, to prescribe how and in 
what manner preservatives for food may be used, and, in other words, 
undertakes to enact into law nothing save those things that are accepted 
and regarded as police regulations in the sale of food products. It is 
true that the bill in one section pretends that it does not interfere with 
the police regulations of the States, but at the same time the same 
section declares that foods and drugs which comply with the provis- 
ions of this act shall not be interfered with by the State authorities 
when brought from another State so long as they remain in the origi- 
nal, unbroken packages. 

We challenge the right of Congress to enact such a law as this. 
We deny that Congress has any such power, and insist that under the 
pretence and guise of regulating commerce Congress can not enact a 
law which is purely for the purpose of exercising police power within 
the States. The test which would be applied to the act, if it should 
become a law, would be whether laws enacted by the States in refer- 
ence to the subject of food products and drugs which were manufac- 



4 PURE FOOD. 

tui'od in the States or which wcro brouo-ht into the States, whether in 
orio-iiuil pju'kao-es or not, for saU^ could be enforced where such hiws 
conflicted with this act of Conoros.s. The only reason that could be 
o'isen wh}' the State law would l)e inoperati\e would be that this act 
was passed in pursuance of the power of Coni>'ress to regulate com- 
merce and that the laws of the States passed on the same subject were 
efforts on the part of the State to interfere with commerce. 

As we have stated, we do not believe that this bill can be enacted 
bv Cono-ress by reason of its power and authority to regulate com- 
merce among the States, nor do we believe that this act will prevent 
the States from enfoi'cing such laws as they now have on their statute 
books, or that they may hereafter pass, for the purpose of protecting 
the people of the States from fraud and imposition in the matter of 
impure food or drugs, or prevent the States from themselves estab- 
lishing standards of foods with which all food products must comply, 
whether manufactured in the States or brought therein for sale, con- 
sumption, or use. 

It occurs to us to say that that this is but another effort to min- 
imize the powers of the States and to magnify the powers of the Cxen- 
eral Government, an effort to look to the General Government 
for the correction of all the ills and evils with which the public 
may think itself afflicted. We believe that the State legislatures 
are competent to enact adequate laws on the subject, and that the 
State officials are both honest and efficient and will enfon^e the laws. 
AVe do not believe that this law will accomplish any more than State 
laws rigidly enforced would accomplish. 

Believing that this is an attempt on the part of the United States to 
exercise police power within the States, and that it is not a proper 
exercise of power by Congress under the commerce clause of the 
Constitution of the United States, we insist that neither the original 
])ill which came from the Senate nor the substitute offered by the 
committee should pass. Amplifying our reasons, we submit that — 

POLICE POWER. 

The police power of the States extends to all matters relating to the 
health, safet}-, and morals of its citizens and to everything referring 
to its domestic economy and of the relations of the people to each 
other and the States. 

This was clearly decided by the License Cases (5 Howard. 631), per 
Grier, J., in whose opinion cases on this sul)ject are cited. 

See Federalist, No. 45, 216. Brown /•. Md., 12 Wheat., 441. 

Passenger cases, 7 Howanl, 523, 550. 4 Sandf., 492. 

Groves v. Slaughter. 15 Pet. ,512. 5 Howard, 628. 

License cases, 5 Howard, 589, 631. 7 Howard, 414. 

6 (ireenl., 412. 7 Howard, 417. 

Holmes r. Jennison, 14 Pet., 568. 1 Black, 603 (66 U. S., XVII, U*l), the 

Gibbons r. Ogden, 9 Wheat., 203. case of Conwav r. Tavlor. 

Mayor, etc., of N. Y. v. Miln., 11 Pet., 133. Austin r. Tennessee, 179 U. S., 343. 

The-principle sustained in the cases above cited is condensed in the 
head notes to the case of The Mavor and Aldei-men of New York /•. 
Miln. (11 Peter.s), as follows: 

.\ State has the same undeniable and unlimited jurisdiction over all persons and 
things within its territorial limits as any foreign nation, when that jurisdiction is not 
surrendered or restrained bv the Constitution of the United States. 



PURE FOOD. 5 

It is not only the riiiht but the bounden and solemn duty of a State to advance the 
safety, happiness, and prosperity of its people and to provide for its general welfare 
by any and every act ()f legislation which it may deem conducive to these ends when 
the powers over the particular subject or the manner of its exercise are not surren- 
dered or restrained by the Constitution of the United States. 

All those powers which relate to merely municipal legislation, or which may be 
more properly called internal police, are not surrendeied or restrained, and conse- 
quently in relation to these the authority of the State is complete, unqualified, and 
exclusive. 

In the opinion rendered toy Jud^e Barbour the statement is made 
that these positions are considered "as impregnable." In defining 
what is meant by the "police i)owers" of the State the court said: 

Every law came within this description which concerned the welfare of the whole 
people of a State or any individual within it, whether it related to their i-ights or 
duties; whether it respected them as men, or as citizens of the State; whether in 
their public or private relations; whether it related to the rights of persons or of 
property of the whole people of a State or of any individual within it, and whose 
operation was within the territorial limits of the State, and upon the persons and 
things within its jurisdiction. * * * 

Congress is without power to legislate (except as to the District of 
Cohtmbia, the Territories, and insular possessions) on this subject. 

That Congress can not exercise this police power so as to make it a 
crime for any citizen to violate the provisions of this bill in any of the 
States with reference to branding and labeling food products, or for 
failing to have the same come up to the standard provided by this bill, 
is, in our opinion, clearl}' established b}^ the case of United States v. 
Henry C. De Witt (9 Wallace, 41, 45). In that case De Witt was 
indicted under the twenty-ninth section of the internal-revenue act, 
which made it a misdemeanor punishable by fine or imprisonment to 
mix for sale naphtha and illuminating oils, or to sell or otfer for sale 
such mixture, or to sell or otfer for sale oil made of petroleum for 
illuminating purposes intlamma])le at less temperature than 110- F., 
and the indictment alleged that he ofl'ered for sale oil made of petro- 
leum of the description specified in the statute, at DetVoit, Mich. To 
this indictment the defendant demurred upon two grounds, to wit: 
That the first charge in the indictment did not constitute any oft'ense 
under any valid and constitutional law of the United States, and that 
the act above quoted was invalid and unconstitutional. 

There was a certificate of division of opinion between the circuit 
judges and the case came to the Supreme Court of the United States tipon 
such certificate of division. The opinion of the court was pronounced 
by Chief Justice Cha.se. and the decision is concurred in b}' all of the 
judges. In that case the Chief Justice said that the act was so clearly 
a regulation of police, and that it could only have constitutional oper- 
ation within the District of Columbia and those localities over which 
the United States has exclusive jurisdiction, that it was unnecessary to 
enter into a detailed discussion of it, and that within the State limits 
the law could have no constitutional operation. This case is so directly 
in point and so fully sustains the proposition that the provisions of 
this bill are mere regulations of police and an efi'ort on the part of 
Congress to exercise police powers within the limits of the State, 
which power Congress does not possess, that the following quotation 
from the opinion is given: 

The (juestion certified resolves itself into this: Has Congress power, under the Con- 
stitution, to prohibit trade within the limits of a State? 

That Congress has power to regulate commerce with foreign nations and among 



() PURE FOOD. 

the several States, and with the Indian tribes, the Constitution expressly declares. 
But this express ^rant of power to regulate commerce anionfj the States has always 
been understood as limited by its terms, and as a virtual denial of any power to inter- 
fere with the internal trade and business of the separate States; except, indeed, as a 
necessary and jjroper means for carrying into execution some other power expressly 
jiranted or vested. 

It has been ur<j;ed in argument that the provision under which this indictment 
was framed is within this exception; that the prohibition of the sale of the illumi- 
nating oil described in tlie indictment was in aid and support of the internal-revenue 
tax imposed on other illuminating oils. And we have been referred to provisions, 
siupposed to be analogous, regulating the business of distilling liquors and the mode 
of packing various manufactured articles; but the analogy appears to fail at the essen- 
tial point, for the regulations referred to are restricted to the very articles which are 
the subject of taxation, and are plainly adapted to secure the collection of the tax 
inii)osed, while in the case before us no tax is imposed on the oils, the sale of which 
is pruhil)ited. If the prohibition, therefore, has any relation to taxation at all, it is 
merely that of increasing the production and sale of other oils and, consequently, the 
revenue derived from them by excluding from the market the particular kind 
de.«cribed. 

This consequence is too remote and too uncertain to warrant us in saying that the 
proliiV)ition is an appropriate and plainly adapted means for carrying into execution 
the power of laying and collecting taxes. There is, indeed, no reason for saying that 
it was regarded by Congress as such a means, except that it is found in an act impos- 
ing internal duties. Standing by itself it is plainly a regulation of police; and that 
it was so considered, if not l)y the Congress which enacted it, certainly by the suc- 
ceeding Congress, may be inferred from the circumstance that while all special taxes 
on illuminating oils were repealed by the act of July 20, 18(58, which subjected dis- 
tillers and refiners to the tax on sales as manufactures, this jirohibition was left 
unrepealed. 

As a police regulation, relating exclusively to the internal trade of the States, it 
can only have effect where the legislative authority of Congress excludes, territorially, 
all State legislation, as, for example, in the District of Columbia. Within State 
limits it can have no constitutional operation. This has been so frequently declared 
by this court, results so obviously from the terms of the Constitution, and has been 
so fully explained and supported on former occasions (license cases, 5 How., 504; 
passenger cases, 7 How., 283; license tax cases, 5 Wall., 470 — 72 U. S., XVIII, 500 — 
and the cases cited), that we think it unnecessary to enter again upon the discussion. 

The first question certilied must, therefore, be answered in the negative. 

The second question must also be answered in the negative, except so far as the 
section named o^ierates within the United States, but without the limits of anv 
State. 

This bill bv its very title indicates that it is an effort on the part of 
the United States Congress to enact a police reoulation or law, for it is 
entitled "An act for preventing the manufacture, sale, or transporta- 
tion of adulterated or misbranded or poisonous or deleterious foods, 
druo-s, medicines, and liquors, and for regulatino- traffic therein,'' etc. 

If it is a correct statement that this bill is one by which Congress 
seeks to exercise police power over citizens and pro{)erty in localities 
other than those over which it has exclusive jurisdiction, to wit. the Dis- 
trict of Columbia, the Territories, and insidar i)osses.sions. then Con- 
gress has no constitutional authority to enact this law. I do not think 
it can be doubted that under our system of Government the police 
power over citizens and property resides with and belongs to the 
.several States and not to the Federal (xovernment, except so far as 
Congress can exercise it over the Territories, the District of Columbia, 
and the insular possessions. It is a power which is inherent in the 
several States; it is left with them under the Federal system of gov- 
ernment; it was reserved to them l)v th(^ Constitution: it was not 
granted to the Ignited Stiites by that instrument, nor can it l)e im})liedly 
conferred upon the General Government, but it is left to the States, 
and may always be exercised by the State legislatures. 



PUEE FOOD. ( 

This is so by reason of article 10 of the Constitution, which declares 

that — 

The powers not delegated to the United States bj' the Constitution, nor pro- 
hibited by it to the States, are reserved to the States respectively, or to the people. 

Nor is this principally affected by the fourteenth amendment, and 
Congress can not in pursuance of it exercise power over the affairs of 
police in the States. The exercise of the police power is inherent 
in the States, resides there, and is not under the control of the Federal 
Congress, and this has been repeatedly decided b}^ the Supreme Court 
of the United States. 

Some of the cases are the following: 

United States /•. Dewitt (1) Wall., 41), where it is stated that this 
principle is so well fixed as to be beyond all controversy. 

License cases, 5 Howard, 621. United States i: Cruikshanks, 92 U. S., 

Passenger cases, 7 Howard, 283. 542. 

Barbier r. Connelly, 113 U. S., '27. Wilkinson v. Eahrer, 140 U. S., 545. 

License Tax cases, 5 Wallace, 470. Gibbons r. Ogden, 9 Wheaton, 205. 
United States r. Reese, 92 U. S., 214. 

In the case last cited the court said that this was legislation which 
""can be most advantageousl}' exercised by the States themselves." 

In the case of the United States r. Dewitt, supra, which was a case 
where Congress had passed an act prohibiting the sale of certain kinds 
of oil, or of oil unable to undergo a tire test, and Dewitt was indicted 
for the sale of oil prohibited by the act of Congress, it was held that 
such act was plainly a police regulation relating exclusively to the 
internal trade of the State and therefore beyond the power of Congress 
to pass. It could therefore be operative only within the District of 
Columbia. (See also Civil Rights case, 109 U. S., 3; Slaughterhouse 
cases, 16 Wallace, 36.) 

In the case of Cruikshanks et al (92 U. S., 542) the Supreme Court 
say: 

The duty of protecting all its citizens in the enjoyment of an equality of rights was 
originally assumed by the States and it remains there. 

POAVER OF THE STATES TO PROTECT THE PEOPLE FROM IMPOSITION OR 
FRAUDS IN THE MATTER OF FOODS. 

The States have the power to punish for a violation of the States' 
laws prohibiting the manufacture or sale of any article of food made 
in imitation of the pure or genuine article which it may seek to imitate 
or which ma}' be made or ottered for sale within the limits of the 
States, whether ottered for sale in original packages or not, after being 
brought into any one State from another State. 

In other words, any person offering for sale an article of food made 
in imitation of the genuine article, or falsely branded or marked, brought 
or transported from one State to another, when it arrives within the 
limits of a State whose laws prohibit the manufacture or sale of such 
article, is subject to the laws of the State where he otters such imita- 
tion food product for sale, even though he otters it for sale in the orig- 
inal package. 

The "conunerce clause" of the Constitution of the United States 
will not protect such a person from being amenable to the police laws 
of such State. 



8 PURE FOOD. 

The case of Pluinley r. Massachusetts (155 V. S., 461) sustains the 
exchisive rioht of the State to pass and enforce laws for the protection 
of the health and morals of its people and to prevent the sale of arti- 
cles of food manufactured in or brought from another State. The 
Supreme Court of the United States decided in that case that the stat- 
ute of Massachusetts to prevent deception in the manufacture and sale 
of ])utter, and which provided that it should he unlawful for any person 
to manufacture, sell, or oti'er for sale, or to have in his possession with 
intent to sell any oleomargarine manufactui'ed in imitation of yellow 
butter, was clearly within the power of the State to enact. 

In that case it was admitted that the article sold had been sent by the 
manufacturers thereof, in the State of Illinois, to the defendant, who 
was the agent of the manufacturers in the State of Massachusetts, and 
that it was sold by him in the original package, and that all the require- 
ments of the act of ('ongress regulating the sale of oleomargarine had 
been complied with. Notwithstanding that oleomarg-arine was author- 
ized to be sold and manufactured by the laws of the United States 
under the act of Congress of August ^, 18S6, and notwithstanding- that 
it was sold by Pluniley in Massachusetts in the original package, the 
Supreme Court of the United States decided that the State of Massa- 
chusetts had the right, through its legislature, to make it a crime for 
anj^one to sell oleomargarine manufactured in imitation of butter, 
even though the sale was had of the oleomargarine while in the original 
unbroken package. 

To quote from the decision: 

If there he any sul)jeet over which it would seem the States onglit to have 
plenary control, and the power to legislate in respect to which it ought not to be 
supposed was intended to be surrendered to the (leneral Government, it is the pro- 
tection of the people against fraud and deception in the sale of food products. Such 
legislation may, indeed, indirectly or incidentally affect trade in such products trans- 
ported from one State to another State. 

But that circumstance does not show that laws of the character alluded to are 
inconsistent with the power of (.ongress to regulate c<jnmierce among the States. 
For, as said l)y this court in Sherlock i:. Ailing (93 U. S., 99, 103): ''In conferring 
upon Congress the regulati<-)n of commerce it was never intended to cut the States off 
from legislating on all subjects relating to the health, life, and safety of their 
citizens, though the legislation might indirectly affect the commerce of the country. 
Legislation, in a great variety of ways, may affect commerce and j^ersons engaged 
in it without constituting a regulation of it within the meaning of the Constitution. 
And it may be said generally that the legislation of the State not directed against 
commerce or any of its regulations, but relating to the rights, duties, and lialnlities 
of citizens, and only indirectly and remotely affecting the operations of commerce, is 
of obligatory force upon citizens within its territorial jurisdiction, whether on land 
or water, or engaged in commerce, foreign or interstate, or in any other pursuit." 

But the case most relied on l)y the petitioner to support the jjroposition that oleo- 
margarine, being a recognized article of commerce, may be introduced into a State 
and there sold in original packages, without any restriction being imposed by the 
State upon such sale, is Leisy v. Hardin (135 U. S., 100). 

The majority f)f tlie court in that case held that ardent spirits, distilled liquors, 
ale and beer, were subjects of exchange, l>arter, and traffic, and being articles of 
connnerce, their sale while in the original ]>ackages in which they are carried from 
one State to another State could not without the assent of Congress be l\)rl)i(lden 
by the latter State; that the parties in that case who took beer from Illinois into 
Iowa had the right under the Constitution of the United States, to sell it in Iowa in 
such original packages, any statute of that State to the i-ontrary notwithstanding; 
and that Iowa had no control over such beer until the original packages were broken 
and the beer in them became mingled in the common mass of jiroperty within its 
limits. " Up to that point of time," the court said, " we hold that in the absence of 
Congressional pi-rmission to do so, the State had no power to interfere by seizure, 
or any other action in prohibition of importation and sale by the foreign or nonresi- 
dent importer." (I'age 124.) 



PURE FOOD, 9 

It is sufficient to say of Leisy r. Hardin that it did not in form or in suhstance 
present the ])articular question now under consideration. The article wiiich the 
majority of the c<iurt in that case lield could be sold in Iowa in original packages, 
the statute of that State to the contrary notwithstanding, was beer manufactured in 
Illinois and shipped to the former State to Vje there sold in such packages. So far as 
the record disclosed, and so far as the contentions of the parties were concerned, the 
article there in question was what it appeared to be, viz, genuine beer, and not a 
liquid or drink colored artificially so as to cause it to look like beer. The language 
we have quoted from Leisy v. Hardin must be restrained in its apf)lication to the case 
actually presented for determination, and does not justify the broad contention that 
a State is powerless to prevent the sale of articles manufactured in or brought froin 
another State, and subjects of traffic and commerce, if their sale may cheat the people 
into purchasing something that they do not intend to Vmy, and which is wholly 
different from what irs condition and appearance import. 

At the term succeeding the decision in Leisv ''. Hardin this court in Rahrer's case 
(140 U. S., 545-546) sustained the validity of "the act of Congress of August 8, 1890 
(c. 728, 26 Stat., 313), known as the Wilson Act, and in the light of the decision in 
Leisy r. Hardin, said, by the Chief Justice, that "the power of the State to impose 
restraints and burdens upon persons and projierty in conservation and promotion of 
the public health, good order, and prosperity is a power originally and always 
belonging to the States, not surrendered by them to the General Government, nor 
directly restrained by the Constitution of the United States and essentially exclu- 
sive," and that "it is not to be doubted that the power to make the ordinary regu- 
lations of police remains with the individual States and can not be assumed by the 
National Government. ' ' 

In Hailroad Company r. Huson, aljove cited, the court, speaking generally, said 
that the police power of the State extended to the making of regulations "promotive 
of domestic order, morals, health, and safety." It was there held, among other things, 
to be "within the range of legislative action to define the mode and manner in which 
everyone may so use his own as not to injure others," and that "the police powers 
of a State justified the adoption of precautionai\v measures against social evils." and 
the enactment of such laws as would have "innnediate connection with the protec- 
tion of persons and property against the noxious acts of others." 

It has therefore been adjudged that the States may legislate to prevent the spread 
of crime, and may exclude from their limits paupers, convicts, persons likely to 
become a public charge, and persons afflicted with contagious or infectious disease. 
These and other like things, having immediate connection with the health, morals, 
and safety of the people, may be done by the States in the exercise of the right of 
self-defense; aufl yet it is supposed that the owners of a compound which has been 
put in a condition to cheat the public into believing that it is a jjarticular article of 
food in daily use and eagerly sought by people in every condition of life are protected 
by the Constitution in making a sale of it, against the will of the State in which it is 
offered for sale, because of the circumstance that it is an original package and has. 
become a subject of ordinary traffic. 

We are unwilling to accept this view. We are of opinion that it is within the power 
of a State to exclude from its markets any compound manufactured in another State 
which has been artificially colored or adulterated, so as to cause it to look like an 
article of food in general use, and the sale of which may by reason of such colora- 
tion or adulteration cheat the general public into purchasing that which they may 
not intend to buy. The Constitution of the I'nited States does not secure to anyone 
the privilege of defrauding the public. The deception against which the statute of 
Massachusetts is aimed is an offense against society, and the States are as competent 
to protect their people against such offenses or wrongs as they are to protect them 
against crimes or wrongs of more serious character, and this protection may be 
given without violating any right secured by the national Constitution and without 
infringing the authority of the (ieneral (Government. A State enactment forbid- 
ding the sale of deceitful imitations of articles of food in general use among the 
people does not abridge any privilege secured to citizens of the I'nited States nor in 
any just sense interfere witii the freedom of connuerce among the several States. It 
is legislation which "can be most advantageousl v exercised by the States themselves." 
(Gibbons r. Ogd^n- « Wheat., 1-203.) 

We are not unmindful of the fact — indeed, this court has often had occasion to 
observe — that the acknowledged power of the States to protect the morals, the 
health, and safety of their peo])le by appropriate legislation sometimes touches, in 
its exercise, the line separating the respective domains of national and State 
authority; but in view of the complex system of government which exists in this 
country, "presenting," as this court, sj^eaking by Chief-Justice Marshall, has said, 



10 PURE FOOD, 

"the rare and difficult scheme of one general government, whose action extends over 
.the whole, but which possesses certain enumerated powers, and of numerous State 
governments, which retain and exercise all powers not delegated to the I'nion," the 
judiciary of the Tnited States should not strike down a legislative enactment of a 
State — especially if it has direct connection with the social order, the health, and the 
morals of its peoj^le — unless sucli legislation ])laiidy and palpal)ly violates some right 
granted or secured by the national Constitution or encroaches upon the authority 
delegated to the United States for the attainment of objects of national concern. 

OROSSMAN V. LUKMAN, 192 U. 8., AFFIRMS PLUMLEY V. MASSACHUSETTS, 

155 u. 8. 

The Supreme Court of the United States, in the case of Grossman v. 
Lurman, in an opinion pronounced by flustice White, from which there 
was nQ dissent, reaffirmed and upheld the case of Plumlev v;. Massachu- 
setts, in the 155 LT. S. R.,.162, and although Chief Justice Fuller, Mr. 
flustice Field, and Mr. fJustice Brewer dissented in the Plumley case, 
neither the Chief Justice nor ^Ir. Justice Brewer, who were on the 
bench when the case of Crossman /•. Lurman was decided, made 
diss en t. 

It will be observed by readino- the dissenting opinion in the case of 
Plumley >i. Massachusetts that the dissent of the Chief Justice was 
placed mainl}'' upon the ground that the State of Massachusetts had 
excluded from commerce a food product which was wholesome, palata- 
ble, nutritious, and in no way deleterious to the public health. In the 
Plumley case it was decided that '"tiie States did have and ought to 
have plenary control over the protection of the people against frauds 
and deception in the sale of food products.'' "Such legislation may, 
indeed," said the court, "directly or indirectly atfect trade in such 
products transported from one State into another State, but that cir- 
(nimstance does not show that laws of the character alluded to are 
inconsistent with the power of Congress to regulate commerce among 
the States." 

The court further said in that case that — 

Tiie power of the State to impose restraints and burdens upon persons and prop- 
erty in the conservation of the i)ublic health, good order, and ])rosperity is a power 
originally and always l)elonging to the States, not surrendered by them to the (gen- 
eral Government, nor directly restrained by the Constitution of the United States, 
and essentially exclusive, 

and — 

it is not to be doubted that the power to make the ordinary regulations of police 
remains with the individual States, and can not be assumed by the National Gov- 
ernment. 

The court also said — 

that legislation forbidding the sale of deceitful imitations of articles of food among 
the people does not abridge any privilege secured to citizens of the United States, 
nor in a just sense interfere with the freedom of commerce among the several States. 
It is legislation which can be most advantageously exercised by the States themselves. 

In upholding a statute of the State of New York which prohibited 
the sale of adidterated food products, and in deciding that it was not 
repugnant to the commerce clause of the constitution, and that it was 
a valid exercise of the police power of the State, the court declared 
that the assertion that that statute was repugnant to the conuuerce 
clause of the Constitution of the United States was devoid of merit, 



PURE FOOD. 11 

and in .so deciding cited with approval the case of Plumley v. Massa- 
chusetts, in the following language: 

Indeed, every contention here urged to show that the Uiw of New York is repug- 
nant to the Constitution of the United States was fully and expressly considered and 
negatived by the decision of this court in Plumley r. Massachusetts, supra. In that 
case the law of the State of Massachusetts for))idding the sale of oleomargarine, which 
was artificially colored, was applied to a sale in Massachusetts of an original package 
of that article which had been manufactured in and shipped from the State of Illi- 
nois. In the course of a full review of the previous cases relating to the subject it 
was said, page 472: 

"If there beany subject over which it would seem the States ought to have 
plenarv control, and the ])ower to legislate in respect to which it ought not to be sup- 
posed was intended to be surrendered to the (General Government, it is the protec- 
tion of the people against fraud and deception in the sale of food products. Such 
legislation may, indeed, indirectly or incidentally affect trade in such pi'oducts trans- 
ported from one State to another State. But that circumstance does not show that 
laws of the character alluded to are incon.sistent with the powers of Congress to regu- 
late commerce among the States. For, as said by this court in Sherlock v. Ailing 
(.93 U. S., 99, 103): 'In conferring upon Congress the regulation of connnerce it was 
never intended to cut the States off from legislating on all subje(;ts relating to the 
health, life, and safety of their citizens, though the legislation might indirectly affect 
the commerce of the country. Legislation, in a great variety of ways, may affect 
commerce and persons engaged in it without constituting a regulation of it within 
the meaning of the Constitution. 

•"And it may be said generally that the legislation of a State not directed against 
commerce or any of its regulations, but relating to the rights, duties, and liabilities 
of citizens, and only indirectly and remotely affecting the operations of commerce, 
is of obligatory force upon citizens within its territorial jurisdiction, whether on land 
or water, or engaged in commerce, foreign or interstate, or in any other pursuit.' " 

Again it was said, page 478: 

"And yet it is supposed that the owners of a compound which has been put in a 
condition to cheat the public into believing that it is a particular article of food in 
daily use and eagerly sought l)y people in every condition of life are protected by the 
Constitution in making a sale of it against the will of the State in which it is offered 
for sale, because of the circumstance that it is an original package and has become a 
subject of ordinary traffic. We are unwilling to aci-ept this view. We are of opinion 
that it is within the power of a State to exclude from its market any compound man- 
ufactured in another State which has been artificially colored or adulterated so as to 
cause it to look like an article of food in general use, and the sale of which may, by 
reason of sucih coloration or adulteration, cheat the general public into purchasing 
that which they may not intend to buy. The Constitution of the United States does 
not secure to anyone the privilege of defrauding the public " 

INTERSTATE COMMERCE. 

Hon. J. Randolph Tucker, of Virginia, an eminent lawyer and 
formerly a member of Congress, in a paper read before the American 
Bar Association in 1S8S. on the subject, '" Congressional power over 
interstate commerce," said: 

I think to obtain the true view of this dithcult class of questions, may justify me 
in a more critical analysis of the related powers of {^ongress and the States in respect 
to them. 

Congress has power to regulate, not persons and things, but commerce in them 
quoad the commerce — traffic, intercour.se, etc., Congress has clear power. As to the 
things and persons when not in commerce, the States have a clearly reserved power. 
Before things become articles of commerce, interstate or foreign, State power is 
supreme. After they become such, and while they are articles of such commerce, 
Congress has power to exclude State action (Mugfer v. Kansas, 123 U. S., 623, and 
Bowman v. R. R. Co., 125 U. S., 495). States legislate as to things and persons; 
Congre.ss oidy as to interstate and foreign connnerce, in tlie things or persons. 

This clear, but nice and subtle distinction, is as old as Brown /•. Maryland (12 
Wheat.), and Gibbons ;'. Ogden (9 Wheat.). 

The boundary line between State and Federal power is set up by the Constitution; 
the courts have only to find its location and keep uj) the fence between them. 



12 PURE FOOD, 

Thus, a tax l)y Congress on the salary of a State judge was held void, hecause it 
was not neeessary or proper for Congress thus to trench upon State autonomy. (Col- 
le(^tor /'. Day, 11 Wallace. ) 

So inspection laws of States operate on things before they become objects of com- 
merce, and are beyond the reach of Congressional action, ((ribbons v. Ogden, and 
cases cited supra.) Quarantine laws are for State action and Congress has always 
conformed to them. Commerce stops with the shore; the recejition of tlie articles is 
determinaliie by the State, if within it« power, over the health, life, and safety of its 
citizens. 

In the last decided case, Bowman /■. Railroad Comj)any, supra, Iowa's right to stop 
the shijiment of goods for transportation from Illinois to Iowa, was insisted on. It 
was denied by the court, because Iowa forl^ade the trdnxiluii of an article while a sub- 
ject of commerce. It was not decided that Iowa might not forbid its use or sale 
when it reached its terminus and I'eased to be in cummevcial (r'tiisiflon. When it 
doffs the commercial garl> and dons that of a mere thing of property it ceases to be 
a subject of commercial regulation by Congress and becomes a subject of State power. 
As mere property it is umler State power. But when it moves toward another State 
or a foreign country its trdnaltas is under Congressional regulation, [^n/rxfi in its 
motion it violates the police power of fhf Slates Congress guards, guides, and protects 
it to its destination. When that is reached it drops again from the hands of Congress 
into tlie hands and under the power of the State. 

But here it may be asked, Can Congress invest by commercial regulation an article 
with the quality of property which the State declares shall not have such quality? 
Could Congress have authorized a slave to be transported into a State which makes 
slavery illegal? Could Congress authorize dynamite or gunjiowder to be carried in 
open cars through a State which forbids it because a peril to life and property? 

Such questions bring into apparent collision the commerce power and the police 
I)ower of the States. 

The solution may be found in the fact that no commercial regulation can be con- 
stitutional which is not necessary and pro|>er; and none can be necessary or proper 
which exposes to disease and death or slavery the people who live in a State under 
the reservation of its protective power. 

And if it is objected that a State upon this ^'iew may thus transcend the bounds of 
its power to protect its people, the answer is, that when the judicial department, 
whose duty it is to keep up the fence between granted and reserved power, finds 
that a State main fide makes its police power the pretext to regulate or prohibit com- 
merce, or that Congress under the commerce power tnaht fide invades the reserved 
police power of the State, it shall so adjudge, and maintain in both cases, the 
supreme law of the land over Congress and the States. 

And this view avoids what, I must with deference say, seems to me to be an 
inaccurate mode of statement — ^that a tax on interstate counnerce l)y a State is a regu- 
lation of commerce, and therefore void, because of the exclusiveness of the power 
of Congress to regulate it. * * * 

In the exercise of the police powers as to health and the like; as to bridges, 
wharves, and the like; as to pilotage, etc., and as to the removal of obstructions in 
rivers, bays, etc., the State has these powers as a part of its jwlice reservation for the 
life and property of its people engaged in commerce. In this the State only protects 
the person and property; it does not regulate the transitus. These it may, as we 
have seen, exercise freely and bona fide, so as not to obstruct the freedom of com- 
merce secured by the higher auth^ritj' of the Constitution. To regulate may and 
should be to help and facilitate connnerce, not to o1>struct it; and the olistruction, as 
I have insisted, of free commerce between the States established by the Constitution 
is not a lawful exercise of the power to regulate commerce by Congress, nor of the 
police power by the States. 

The Constitution makes trade free between the States, ^'o power can obstruct it. 
A State can not, nor can Congress, so exercise its powers as to do so. Hence, though 
a tax by a State on interstate commerce is void, it is so because it obstructs the free- 
dom of that connnerce established by the Constitution, and not because it is itself 
a regulation of commerce. It is not such regulation, for if it were it would follow 
that Congress could tax it, which, for reasons already urged and hereafter set forth, 
I deny. 

******* 

The "immense nia.ss of legislation" ((iibbons v. Ogden, 9 Wheat., 1) which 
belongs to the States, called police powers, for want of a better name, are limitations 
upon the commercial power of Congress. These i)o!ice powers, as I have enileavored 
to show, are not regulations of connnerce. They are distiui't and different from 
these. But the regulations of Congress and these police powers spread over the 



PURE FOOD. 13 

same objects. But botli may exist without repugnanee, and must be made to consist 
in the fair and just etliciency of each. Wliile the pohce (lowers must not trench 
upon the regulations of connnerce, these nuist l)e made to respect the health and 
other police laws of the States. Commerce should flourish, Ijut must not carry dis- 
ease to the people. A State bridge may cross a navigaljle stream, but so as not to 
ol)struct commerce. These are all cases not of rival commercial regulations, l>ut the 
constitutional coexistence in consistent force, of the commercial power of Congress 
and the reserved autonomy of the State as to its internal polity. 

I may venture to say that property in transitu from one State to another through a 
third could not be obstructed by the laws of the latter; and this seems to be involved 
in many of the later decisions of the Supreme Court. The State can not obstruct 
the transitus, for that is commerce; but it may legislate on the thing or person when 
its transitus being ended it remains within its borders. 

Mr. Titckner was not only an able and eminent lawyer, but also 
the author of a work upon the Constitution of the United States, 
which is acknowledged and accepted as authority upon that subject 
by the courts; hence his views on the subject treated of by him herein 
quoted are entitled to much respect. 

Former United States Senator (leorge, of Mississippi, who was 
admitted to be one of the most learned and eminent lawyers who ever 
served in the Senate, while a member of the Judiciary Committee, 
made two reports on the subject of interstate commerce and the police 
powers of the States. We incorporate them as the views of that most 
distinguished and able lawyer, and believe that they are entitled to and 
will receive due consideration. 

In the Fiftieth Congress Mr. George submitted the following from 
the Committee on the Judiciarv: 

[Senate Report No. 61U, Fiftieth Congress, first session.] 

The Committee on the Judiciary, to whom was referred the bill (S. 1067) relating 
to imported liquors, foi- examination of the constitutional questions involved, beg 
leave to report: 

The object of the bill is to subject to the laws of the several States through whose 
ports importations of ardent spirits or intoxicating liquors are made the rights of the 
importer as to the disposition of the same. . 

If the bill should become a law it would result that though Congress allows the 
importation of such liquors upon the payment of the duty levied, yet the right of 
the imjjorter to sell or dispose of them in the original package would be subject to 
prohibition or regulation in each State into which the importation may be made, 
according to its own will. In some States tlie importer might freely sell; in others 
he would not be allowed to sell at all; and in others the sale would he restricted by 
license fees, or other taxation, as each State might adjudge was best for itself. 

The question whether a State, in the exercise of its police powers, can restrict or 
prohibit the sale of imported intoxicants is not submitted for our examination. The 
bill proceeds on the theory that the powers of the States are ineffectual to prevent 
such importation and subsequent sale l)y the importer, anil seeks the permission of 
Congress to effect that end. Our ituiuiry, therefore, is restricted to the ascertainment 
of the powers of Congress to modify and change the constitutional effect of the laws 
of the United States authorizing im])ortation so that this effect should be as diverse 
as the laws the several States might enact. 

The theory of constitutional law on which the bill is based is expre.ssed in the 
following quotation from the opinion of Chief Justice Taney, in the License Cases 
(5 How., 504) , in which that great judge stated and afhrmed the doctrine announced 
by the court through Chief Justice Marshall in Ward r. Maryland (12 Wheat.. 112): 

"That an article authorized by a law of Congress to be iniimrted continued to be a 
part of the foreign commerce of the country while it remained in the hands of the 
iinporter, for sale in the original bale, ])ackage, or ve.^sel in which it was imported. 
That the aiithoritij given to hnport necexmrihi carried vith if the riglit to xe/l the imported 
article in the form and xJiape in- irhirh it vas imported, and that no State, either by 
direct assessment or by requiring a license from the importer before he was permitted 
to sell, could impose any burden on him or the property imiwrted beyond what the 
law of Congress had itself imposed, but that when the original package was l)roken 
up, for use or for retail, by the imptirter, and also when the conunodity had passed 



14 PURE FOOD. 

into the liand? of a purchaser, it ceased to be an import or a part of foreign com- 
nu'rce and became Hubject to the laws of the State, and might be taxed for State 
purpose.^ and the sale regulated by the State, like iin\- other projierty." 

The theory of the bill also recognizes the {)rinci]>le that intoxicants are legitimate 
objects of foreign commerce, and as such are within the power of Congress to regu- 
late. This theory is thus expressed l)v Chief Justice Tanev in the License Cases 
(5 How., 504): 

"Spirits and distilled li(|uors are universally admitted to be sul)jects of ownership 
and i)roperty, and are therefore the subjects of exchange, barter, and traffic, like 
any other commodity in which a riglit of proi)erty exists. And Congress, under its 
general power to regulate i-omnierce with foreign nations, may prescril)e what arti- 
cles of merchandise shall be admitted and what excluded, and may therefore admit 
or not, as it shall seem best, the imjwrtation of ardent spirits. And inasuuu'h as the 
laws of Congress authorize their importation, no State has a right to prohiV)it 
their introduction." 

Assuming this theory to be correct, it results that there is no difference in the 
power of Congress to regulate foreign conunerce on ardent spirits and in their power 
of regulation over any other article of commerce. All objects of commerce, so far as 
the power of regulation by Congress is concerned, are exactly on the same footing. 
We may dismiss, therefore, in considering the constitutionality of the bill, the inci- 
dent that this particular conunodity may l)e injurious to the health and morals of 
the people, as wholly immaterial. Congress, it is true, in forming a regulation of 
commerce with reference to intoxicants, may properly consider their injurious effect 
in use, and may form the regulation with reference to that effect. But having 
imposed a tax on the importation, and thereby recognized sf)irits as legitimate com- 
modities of foreign commerce, the regulation of commerce on them must be governed 
by the same constitutional rules as apply to all foreign commerce. 

It has been seen that an imported article remains a part of foreign commerce so 
long as it remains in the hands of the importer in the same shape and form in which 
it was imported. A prohibition or restriction on its sale, whilst thus conditioned, 
made by State authority, would therefore be a regulation of foreign conunerce by the 
State, and, as we have seen, would not be permissible under the Constitution. C'an 
Congress give this power of regulation to the States? The answer to this would seem 
to be too plain for controversy. The dividing line between State and Federal pow- 
ers is fixed by the Constitution. That instrument, the supreme law of the land, 
specifies what is granted and thus fixes also what is reserved. A State can not 
enlarge the powers of Congress even in its own limits. This would be a surrender 
to that extent of its constitutional equality with the other States. 

The Constitution has formed and was intended to perpetuate a Union of equal 
States, e(|ual in political dignity and in political power, and no diversity in these 
respects is possible. If it be true that Congress can not, in jjursuance of the Consti- 
tution and without any assent of a particular State or States, make a regulation as to 
the sale of imported goods still remaining a part of foreign commerce, different in 
some States from the regulation in the other States, it must follow that no such dif- 
ferent regulation can be established in the States which shall consent to it. 

It is e(iually clear that Congress can not part with or delegate to a State any power 
which has not l)een reserved to it. Congress can not return to the States a power 
given by the Constitution to Congress; much more can not Congress delegate or sur- 
render a granted power to any portion of the States, for that would pro tauto invest 
those States with powers not ])ossessed by the others. We may safely rest, therefore, 
on the conclusion that this bill is unconstitutional in subnntting the foreign com- 
merce named in it to regulation by State laws, unless we shall find that Congress niay, 
without any aid from State laws, make different regulations as to imjiortations in dif- 
ferent States. We are thus brought face to face with this proi>osition, that Congress 
has power to enact that a partit:ular imported article, after payment of duties accord- 
ing to law and still in the hands of the importer and in the original package, and 
ihcrefore i^tlU a part of foreit/ii commerce, may be freely sold in some States and in others 
shall not be sold at all, or sold only with burdensome restrictions. 

To that proposition thus expressed we are confident that none would assent. Such 
a law would not only contravene that provision of the Constitution which recjuires 
impost taxation to be uniform throughout the Union, but also that provision which 
prohibits Congress from giving by any regulation of commerce a preference to the 
ports of one State over those of another. It would destroy uniformity in taxation, 
because in one State the payment of the impost tax would include in it as its right- 
ful and necessary effect the right to sell, and in the other it would include no such 
right. 

Taxation to be uniform, as required by the Constitution, must not only be the same 



PURE FOOD. 15 

in amount on the same thing, but payment of it must be followed by the same legal 
consequences. A i)reference is given to the ports of one State over the ports of 
another by a regulation of commerce, when, by a law of Congress, importations into 
the ports of the one upon payment of the duty may lie sold, and in tlie other they 
maj' not. That the State discriminated against consents to the discrimination can 
make no difference, as we have seen. It is not in the power of a State to give force 
and validity even within its own borders to an act of Congress passed in violation of 
the Constitution. 

There is one other aspect necessary to be considered. It being sliown, as we think 
it has been, that Congress can pass no such law, and that the States can pass no such 
law, and that Congress can not delegate to the State the power to pass such a law, 
and that a State can not invest Congress with the power of enacting such a law, 
to be operative only within its own borders, we have now further to inquire 
whether the conjoint action of a State and of the Congress can make such a law 
valid within the limits of the State. There is such a thing in the Constitution as 
concurrent powers in tlie several States and in the United States, whereby each sov- 
ereignty may legislate independently on tlie same subject. But these powers are of 
that kind where conjoint action is not contemplated. The concurrent jiovver of the 
State is subordinate and can only be exercised when not in conflict with the law of 
Congress, which is supreme. This is not a case of that kind, for here neither has 
independently any power wliatever. 

There are a few conjoint powers specified in tlie Constitution; that is, certain 
reserved powers of the States are not reserved to tliem absolutely, but only to be 
exercised by the consent of Congress. 

Among these is the power to levy imposts and duties, the net proceeds of which 
are to go into the Treasury of the United States; making compacts between two or 
more States; laying duties of tonnage; keeping troops and ships of war in time of 
peace. But among these is not included the power claimed in this bill. The power 
here claimed is a power denied both to the States and to Congress; and the effect of 
tlie Ijill is to create a constitutional power by the joint action of two parties to both 
of which it is jirohibited. This we contidentlj- assert can not be done. 

It is no answer to this reasoning that Congress has enac^ted sec. 3247 of the Eevised 
Statutes. The power therein exercised by Congress is in reference to things purely 
internal and domestic in the States — a power of internal taxation — and not the same 
power as is attempted to be exercised in this l)ill. If it is the same power, however, 
it has been proven to be unconstitutional. 

As before stated, we express no ojiinion as to the power of the States, without any 
aid from Congress, to prohibit the sale of imported intoxicants by the importers in 
the original packages. If they ha\e such power, there is no need of this bill, the 
sole ol)ject of which is to confer the jiower. 

The 'bill is improper, if not unconstitutional, if considered as a declaration merely 
by Congress that such power exists in the States. That is purely a judicial question. 
The Congress can enact laws — they can not expound them. Necessarily in enacting 
a law on any given subject Congress determines that they have jurisdiction and 
power to legislate over that subject. But this determination is the necessary inci- 
dent of enacting a statute which of itself becomes a rule of action, the framingof the 
rule, not the exposition of the Constitution, being the end sought to be attained. 
The settling of the meaning of the Constitution is not a legitimate object of legis- 
lative power. 

Besides, the Congress can only exercise the powers granted, and those necessary 
and proper for carrying into effect the vested powers. If it be conceded, as we have 
shown it to be, that the power to pass the bill as a rule of action, as a law, is not in 
Congre.ss, th.en it is also shown that it may not be passed as a declaratory act, since 
such act is not necessarv or proper for carrying into effect any power granted to the 
United States. 

We repeat, that in the matter submitted to us no question arises as to the extent of 
the i)olice powers of the States to prevent the introduction of intoxicants, or their 
subsequent sale by tiie importer. The bill is framed on the theory, as we have seen, 
that it may be no such power exists in the States, its sole object being to confer it. 
Our conclusion goes no further than to deny that such power can be conferred. 
However desirable it may be to dinunish, or prohibit entirely, the use of intoxicants, 
that end can only be reached by constitutional metliods. 

It should not be overlooked that the jirovince of State control over what concerns 
the police regulation of domestic health, ]>eace, and general good order and well- 
being within each State is, under the Constitution, as secure against intrusion from 
Federal authority as the regulation of foreign commerce by the General Ciovernment 
is from encroachment upon that province by State authority. It is not desirable that . 



16 PURE FOOD. 

Federal legislation should seem, by inference even, necessary to impart or maintain 
aid or protection to the State's exercise of its authority within the i)rovince of State 
domestic control. The State and the Federal control in the premises are divided by 
the Constitution, and neither for its vigor depends upon the other. The experience of 
the wise a(1ministrati(in hitherto of this judicial question, in defining these resi)ective 
j>r()vinces, in the opinion of (he committee, makes it best to leave this, as it now is, 
a, judii'ial cjuestion, in the highest interest of both the Federal regulati(jn of com- 
merce and the State control of its police authority. 

In the Fiftv-tiist Conoress the same bill came before the Committee 
on the .Fudiciarv of tiie Senate. That committee made a report favor- 
able to the pa.ssage of the bill, and Mr, George submitted hi.s views, 
iis follows: 

[Semite Report No. 993, Fifty-first Congress, first session.] 
VIEWS OF MR. C4E0KGE. 

Jn the Fiftieth Congress the bill before us was considered by this committee, and 
a conclusion reached by a majority that it was unconstitutional. The basis of this 
opinion as stated in the report was that Congress had no power to grant a jurisdiction 
to a State which was by the Constitution vested in the Federal Government. The 
committee thought that the division of power between the States and the Federal 
Government was fixed l!)y the Constitution and could not be changed either by the 
action of Congress alone or by the conjoint action of Congress and any State in which 
it was attempted to vest a part of this power delegated to Congress. 

The committee did not consider that any question relating to the power of the 
State to deal with intoxicating liquors mider their reserved power was submitted for 
their consideration, and for that reason they expressly declined to express any 
opinion on that subject. 

Since that time the Supreme Court has determined that the reserved powers of the 
States did not authorize them to prohibit the sale of imported intoxicating liquors 
within their respective limits, and that Congress might grant to a State the power 
thus denied to them. We are now called upon to act upon this bill after a decision 
of the Supreme Court overruling the opinion then entertained by the committee as 
to the power of Congress to donate a ])ower to the States, and also at variance with 
the views entertained bv the undersigned as to the extent of the reserved powers of 
the States. 

Under these differing circumstances, tlie question of donating this power to the 
States is presented for our consideration. If v,e adhere to the opinion ex|)ressed in 
the former report, we do so in direct conflict with the decision of that tribunal 
appointed by the Constitution to determine authoritatively the extent of the dele- 
gated and reserved powers. And so if the undersigned adheres in practice to the 
opinion that the reserved powers of the States are ample to control and prohibit the 
sale of im])orted intoxicants, he would vainly insist on a jurisdiction which, un<ler 
the decision of the Supreme Court, no State would be allowed to exercise. It is his 
duty, therefore, to conform his action to the decision of the court. 

The court having decided that the power may be delegated by Congress to the 
several States, the only question left is as to the expediency of the exercise of the 
power. 

The undersigned, though yieltling o])edience to the decision of the court, entertains 
the opinion that the States have, under the Constitution, the power yielded by this 
bill, and that this power in the States is necessary for their welfare and even to the 
proper working of our complex political system. 

It is certain that Congress can not exercise the police power of regulating the trafhc 
in intoxicants within the several States, and the Supreme Court has denied this 
power to the States, except as to liquors manufactured within their respective limits. 
So that unless we agree that Congress shall grant this ])ower to the several States as 
decided by the Sui)reme Court may be done, then there remains no power by which 
this police regidation maybe made or enforced as far as imported licjuors are con- 
cerned, whilst th(>y are in the original packages. 

The Supreme Court has assented to the power of the several States to regulate, 
control, and prohibit the sale of intoxicants manufactured within their respective 
limits as a necessary police power, but denies this power as to intoxicants imported 
from another State," or from a foreign country. The result is that however harmful 
a State may determine the traffic in intoxicants to be, the power to j^rohibit il is 
restricted to such li(|Uors only as are manufactured in its borders. Foreigners and 
citizens of other States may, under this new law, invade a State with their intoxi- 



PURE FOOD. 17 

cantf^, dispose of them in their i)riginal packages, and thus carry on a business which 
the State has determined is destructive to tlie peace and good order of the com- 
munity, and to the liealth and morals of the people. 

In this singular and anomalous condition has the State l)een placed by the decision 
of the Supreme Court. 

The court, however, has allowed a means of correction l)y affirmative action on the 
part of Congress, granting permission to the State to deal with imi>orted intoxicants 
in tlie same way, and to the same extent as they may deal with liquors manufactured 
within their respective limits. 

The undersigned believes the true rule to be to concede the power to the States as 
a power reserved, under the Constitution, and not rerjuire them, as the Supreme 
Court has decided, to liold it as a Congressional grant, and therefore subject to the 
will of Congress to give it in the lirst instance and afterwards to withdraw it. Yet, 
as he deems it a power reserved to the States under the Constitution and one neces- 
sary to the maintenance of a rightful authority by the States over their own domestic 
affairs, he feels constrained to support the ])ill, since only by such legislation can the 
States, under the decision of the Sujjreme Court, exercise their rightful and necessary 
jurisdiction o\'er a subject of the utmost importance to their welfare. 

The undersigned expresses no opinion as to the propriety of the exercise of this 
power by the several States. That is not a matter for Congressional consideration. 
Whether there shall be a free or a regulated traffic in intoxicants, or total prohibi- 
tion, is a matter for each State to determine for itself. It is not a matter either of 
Congressional action or advice. 

Believing that the Supreme Court, by its decision in Leisy & Co. r. Hardin, erro- 
neously denied to the States the power conceded to them by this bill, the undersigned 
gives support to the bill as the only means left whereby the States may exercise their 
rightful authority over a matter of the utmost gravity and concern to them. The 
result attained by this action on the part of Congress is the same, so long as Congress 
shall yield the power, as if the constitutional power of the States to act as they saw 
proper had been recognized. It is a matter of sincere regret that the States are com- 
pelled to rely on Congress for a grant of this essential i)ower. It is also to be 
deplored that the Constitution has been authoritatively construed so as to reverse the 
well-recognized rule that Congress is the grantee of powers from the State, and is not 
the source of power which may be parcelled out at its will to the States. Yet, find- 
ing the Constitution thus construed as to this particular matter by the tribunal which 
is appointed as the final arbiter in such matters, the States must submit to hold the 
power at the will of Congress until such time as the court, upon being better advised, 
shall reverse its action. 

J. Z. George. 

STANDARDS OF FOOD. 

The bill provides that the .standards of food which may be estab- 
lished shall be tixed by the Secretary of Ag"ricaltiire, aided l^y the 
committee on food standards of the Association of Official Agricultu- 
ral Chemists and the committee of standards of the Association of 
State Dairy and Food Departments. This pi-ovision, contained in sec- 
tion 9 of the ])ill, will not accomplish the purpose intended, because if 
the Secretary of Ao-ricitlture should establish a standard for fpod 
products, and any State into which such food products may be trans- 
ported should establish a different standard, as the State would have a 
right to do, the standard tixed by the law of the State where the food 
is sold or'otfered for sale would control. 

In other words, the Congress of the United States can not, by this 
bill enacted into law, establi;>h a standard for food products which will 
prevent the States from enforcing compliance with such standards for 
food products as the legislatures of the States may prescribe for the 
several States. Therefore the pui-pose of the l)ill— i. e., to have a 
uniform standard for food — will fail. As has already been stated, the 
Supreme Court of the United States, in the case of Crossman v\ Lur- 
man (192 U. S., 189), decided that the standard for food products estab- 
H. Rep. 2118, pt. 2—59-1 2 



18 PURE FOOD, 

HsIumI I)v tli(> l(>iiisl;itiu'o of New York for the State of New York 
woukl prevail o\or the standard fixed for food product-^ by the act of 
Congress, and that Congn^ss eoukl not, bv tixing a standtird for food 
products ini[)orted into the United States, deprive the States of their 
police power of reoulating tln^ sale of food products within the States. 
In that case the Supreme Court say: 

It is iirired that, even although there was power in the State of New York to leg- 
islate on the subject of ailulteration of food, sueh legislation ceased to l)e operative 
as regards food products imported into the United States through the channels of 
foreign commerce after the passage of the act of Congress approved August HO, 1890, 
" providing for the inspection of means for exportation, prohibiting the importation 
of adulterated articles of food or drink, and authorizing the President to make proc- 
lamation in certain cases." (26 Stat., 414. ) The second .section of that act, it is 
insisted, does not exclude from importation adulterated food, but simply adulterated 
food which is mixed with any poisonous or noxious chemical, drug, or other ingredi- 
ent injurious to health, whi(;h it is urged was not the case with the coffee in ques-' 
tion. The language of the section upon which this contention is based is as follows: 

"That it shall l)e unlawful to import into the United States any adulterated or 
unwholesome food or drug, or any vinous, spirituous, or malt li(iuors, adulterated or 
mixed with any poisonous or noxious chemical, drug, or other ingredient injurious 
to health." 

We think it unnecessary to determine whether the statute lends even color to the 
proposition, since we think it is clear that its effect, whatever be its import, was not 
to deprive the State of its police i)Owersto legislate for the benefit of its people in the 
prevention of deception and fraud, and thus to control sales made within the State 
of articles so adulterated as to come within the valid prohibition of the State's statute. 

If it be the kiw, as was stated in this last-mentioned case, that, not- 
withstanding- the fact that Congress had fixed a standard for food 
imported into the United States, and notwithstanding that the officials 
of the United States authorized to inspect the food thus imported had 
approved of such imported food as having complied with the law, the 
States have the right under their police power to fix another and dif- 
ferent standard, and that food when offered for sale or delivered in 
the States should come up to the standard fixed by the State, then this 
bill which endea^'ors to fix a national food standard for all food prod- 
ucts in the United States when shipped from one State to another 
must fail in its purpose, because ^\ henever any of the States shall fix 
or prescribe a different standard the manufacturers of the food prod- 
ucts nnist comply with the laws of the State where such food is man- 
ufactured or offered for sale. 

Congress has already by act approved June 3, 1002, authorized the 
Secretary of Agriculture to establish standards of food and food prod- 
ucts, and to determine wdiat are regarded as adulterations therein for 
the guidance of the officials of the various States and the courts of 
justice. And the Secretary in pursuance of that act on November 21, 
190H, issued a circular proclaiming standards for purity of food prod- 
ucts, together with their definitions, as the official standards of these 
food ])roducts for the United States. That pi'oclamation is as follows: 

ORIGIN.VI, PROCL.VMATION OF STANDARDS AND LETTER OF TRANSMITTAL. 

[Circular No. 10, Secretary's Office.] 

Whereas, The Congress of the UTuited States by an act ai)])roved June .S, 1!H)2, 
authorized the Secretary of Agriculture to establish standards of purity for food 
products; and 

Whereas he was empowered by this act to consult with the (^ommittee on Food 
Standards of the Association of (ifficial Agricultural Chemists and other experts in 
determining the standards; and 



PURE FOOD. 19 

Wliereai^, he has in accordance with the provisions of the act availed himself of 
the counsel and advice of these exjjerts and of the trade interests touching the products 
for which standards have been determined and has reached certain conclusions based 
on the general principles of exannnation and conduct hereinafter mentioned; 

Therefore, I, James Wilson, Secretary of Agriculture, do herel)y proclaim and 
establish the following standards for purity of food products together with their pre- 
cedent definitions as the official standards of these food products for the United States 
of America. 

James Wilsox. 

Washixgtox, D. C, Novemhcr 21, 1903. 

The various State legislatures have in many instances passed laws to 
conform to these standards, and doubtless many more will do so. In 
our opinion, this will be all the law necessary or proper for Congress 
to pass on the subject. 

If anything- at all is needed in the way of legislation to enable the 
States to efl'ectuall}" enforce their laws upon the subject of food, food 
products and drugs, and to prevent the sale of impure foods, or the 
fraudulent branding of food products or drugs, then all that is needed 
is for Congress to enact a law which would subject such food products 
or drugs to the police laws of the various States whenever they are 
transported into the States for sale or use in the same way that the 
act of August 8. 1890, made spirituous liquors and beer subject to the 
laws of the States when transported therein for use or consumption, 
and, to that end, we suggest that House bill No. 16"21S would meet the 
present demands for pure-food legislation. 

That bill is as follows: 

[H. R. 16248, Fifty-ninth Congress, first session.] 

A BILL to limit the effect of the regulations of commerce between the several States and with foreign 
commerce in the case of foods and drugs. 

Be it enacted by the Senate and Houi^e of Represcutatires of tlte United States of America 
in Congress assembled, That from and after the passage of this act all articles of food 
or drugs transported into any State or Territory, or remaining therein for use, con- 
sumption, sale, or storage therein, shall, upon arrival in sucli State or Territory, be 
subject to the operation of and effect of the laws of such State or Territory enacted 
in the exercise of its police powers to the same extent and in the same manner as 
though such food or drugs had been produced or manufactured in such State or 
Territory, and shall not be exempt therefrom by reason of being introduced therein 
in original packages. 

Sec. 2. That the term "food" as used herein shall include all articles used for food, 
drink, confectioners, or condiment liy man or other animals, whether simple, mixed, 
or compound. That the term "drugs" shall include all medicines and preparations 
recognized in the United States Pharmacopoeia or National Formulary for internal 
or external use, and any substance or mixture of substances intended to be used for 
the cure, mitigation, or prevention of disease of either man or other animals. 

We therefore offer this bill as a substitute for both the Senate bill 
and the House substitute, believing that if Congress shall enact the 
same it will do all that Congress is authorized to do under the Consti- 
tution and will fully protect the people of the United States, or at 
least will leave to the people of the various States, through their leg- 
islatures, the duty of protecting the people of the States from fraucls 
and nnpositions in the matter of food products. This is where the 
Constitution of the I'nited States places the j)ower of protecting the 
people of the States in their health, safety, and morals, and will not 
destroy the powers of the States, and will not convert Congress into a 
legislature for the enactment of pureh' police laws for the various 
States of the Union. 

The Speaker of the House, Hon. Joseph G. Cannon, on the 16th of 



20 PUKE FOOD.- ^^ 

Februaiy, 1906, before the Union League Club, of Philadelphia, gave 
utterance to some views and sentiments which we so heartily approve 
that we deem it not amiss to incorporate them here. They were as 
follows: 

KEPUBLIC'S GKEATEST DANGER. 

In my judgment the greatest danger to the Republic comes from the citizen who 
refuses or neglects to i)articipate in governing in local, State, and national affairs 
and seeks protection from the government to which he does not contribute accord- 
ing to his ability or means. In my judgment the danger now to us is not the weak- 
ening of the Federal (jovernment, but rather the failure of the forty-five sovereign 
States to exercise, respectively, their function, their jurisdiction, touching all matters 
not granted to the Federal Government. This danger does not come from the desire 
of the Federal Government to grasp power not conferred by the Constitution, but 
rather from the desire of citizens of the respective States to cast upon the Federal 
Government the responsibility and duty that they should perform. 

If the Federal Government continues to centralize we will soon find that we will 
have a vast bureaucratic government, which will prove inefficient if not corrupt. 

The governor of one of the States has within a few days written to a Senator in 
Congress that his State is powerless to compel the railways within its borders to 
extend to its citizens facilities by proper connection, switching, and the furnishing 
of cars to enable its people to have equal and fair treatment under similar conditions 
with other favored citizens, and that this condition comes from inability to enforce 
law in existence and to enact additional necessary legislation, and in effect appealing 
for relief to the Federal Government. 

There is no adequate remedy for this condition except by the people of that State 
clothed with plenary power through the enforcement of the law, and the enactment 
of additional legislation, if necessary, to exercise the function of government. 

W. C. Adamson, 
C. L. Baktlett, 
Gordon Russell. 

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